TMI Blog2019 (2) TMI 426X X X X Extracts X X X X X X X X Extracts X X X X ..... the U.P. Municipalities Act, 1916 having been omitted by virtue of Section 173 of the U.P. Goods and Service Tax Act, 2017, the municipality did not even have the statutory competence to levy, impose or collect Advertisement Tax. The levy and collection of the Advertisement Tax under the provisions of Nagar Palika Parishad, Hathras (Vigyapan Kar Ka Nirdharan Aur Wasuli Viniyaman) Upvidhi, 2015 is clearly without legislative or statutory competence and is ultra-vires under Article 265 of the Constitution of India, U.P. Municipalities Act, 1916 and U.P. Goods and Service Tax Act, 2017. This Court has no hesitation in holding that the said Nagar Palika Parishad, Hathras (Vigyapan Kar Ka Nirdharan Aur Wasuli Viniyaman) Upvidhi, 2015 is without any legislative or statutory competence and, thus, are hereby struck down - the Court has held the levy and collection of Advertisement Tax as ultra-vires, the amounts so collected from the petitioner are liable to be refunded. Petition allowed. - Writ Tax No. - 577 of 2018 - - - Dated:- 8-2-2019 - Pankaj Mithal And Pankaj Bhatia JJ. For the Petitioner : C.K.Parekh,Vikas Rastogi For the Respondent : C.S.C.,Sahab Tiwari, Saur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed before the High Court, Allahabad by means of Writ Petition No. 7848 of 2010 (M/B) Bharti Airtel Limited through its Authorised Signature vs. State of U.P. And others, the said petition came to be decided on 21.10.2010 wherein the Hon'ble Court held that the Nagar Palika Parishad and Nagar Panchayat have no authority to impose tax on the Hoardings/Sign Boards/Glow Signs. A similar view was taken by this Court in Writ Tax No. 2300 of 2009 (Idea Cellular Limited And Another vs. State of U.P. And Others) wherein this Court has held that levy, imposition and collection of Advertisement Tax by the Nagar Palika Parishads/Nagar Panchayats was wholly illegal and without any sanction of law. The U.P. Municipalities Act 1916 was amended by U.P. Act No. 8 of 2011, published in the U.P. Gazette Extraordinary Part-1 Section (Ka) on 11.3.2011 whereby Section 128(2)(vii) was introduced giving the municipality the power to impose the advertisement tax. Section 128 after its amendment on 11.3.2001 is as under: [128. Taxes to be imposed. - (1) Subject to the provisions of this Act and of Article 285 of the Constitution of India, a Municipality shall impose the following taxes, name ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation Rules were framed under U.P. Municipal Corporation Act which provided for the procedure for levy and collection of the Advertisement Tax. The said rules came up for consideration before the Full Bench in the case of Anurag Bansal vs. State of U.P. And Others, which was decided on 24.4.2011 wherein the said rules were held to be ultra vires, the provision of the Act as same were made without following the procedure laid down under the Act. In a similar manner, bye-laws framed by the Nagar Nigam, Lucknow, Nagar Nigam, Allahabad and Nagar Nigam, Bareilly were challenged and were declared as illegal, void and inoperative vide judgement of this Court in the case of Pepsico India Holdings (Pvt.) Ltd. vs. State of U.P. And others, 2015 (1) ADJ 273, decided on 08.1.2015. The bye-laws framed by Kanpur Nagar Nigam were also challenged and declared to be illegal by this Court in the case of U.P. Advertisers Association and others vs. State of U.P. And Others, 2017 (5) ADJ 780 (DB) , decided on 04.05.2017. The above being legal history of various attempts made for levy and collection of Advertisement Tax by the municipalities in the State of U.P. Sri C.K. Parekh has argued that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 173 of the U.P. Goods and Service Tax Act, 2017 is quoted as under: 173. Amendment of certain Acts. - Save as otherwise provided in this Act, on and from the date of commencement of this Act,- (i) In the Uttar Pradesh Municipal Corporation Act, 1959 Clause (h) of sub-section 2 of Section 172 and Sections 192, 193 shall be omitted. (ii) In the Uttar Pradesh Municipalities Act, 1916 clause (7) of sub-section (2) of Section 128 shall be omitted. (iii) In the Uttar Pradesh Taxation and Land revenue Laws Act, 1975, Chapter II shall be omitted. Admittedly, the bye-laws by virtue of which the municipalities intended to levy and collect tax on advertisement were framed on 12.1.2017, however, the same were published on 19.8.2017 i.e. after 01.07.2017 when the U.P. Goods and Service Tax Act, 2017 came into being and after the omission of Section 128(2) sub-section (vii) of the U.P. Municipalities Act. That being the case, the narrow ground to be considered by this Court is whether the bye-laws framed on 12.1.2017 by the respondents and published on 19.8.2017, were beyond the statutory power of the municipalities. Learned counsel for the Municipality tried to justify ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Parishad Hathras (Vigyapan Kar Nirdharan Va Vasuli Viniyam) Upvidhi 2015 promulgated w.e.f. 19.08.2017 are ultra vires not only to the constitutional provisions but also to the U.P. Municipalities Act, 1916 (hereinafter referred to as the Municipalities Act) and U.P. Goods and Service Tax Act, 2017 (hereinafter referred to as the G.S.T. Act), I propose to add my views to strengthen the opinion expressed by my brother. Article 265 of the Constitution of India mandates that no tax shall be levied or collected except by authority of law. Therefore, the authority to levy any tax must be derived from some Statute. The Nagar Palika Parishad, Hathras framed the said byelaws in exercise of its powers under Sub-Section (2)(vii) of the Section 128 of the Municipalities Act which enabled the municipality to impose tax on advertisement not being advertisement published in the news papers. The aforesaid provision of Sub-Section (2)(vii) of the Section 128 of the Municipalities Act was omitted vide Section 173 of the G.S.T. Act which was enforced w.e.f. 01.07.2017. It may be pertinent to note that not only the G.S.T. Act was implemented w.e.f. 01.07.2017 but even the provision of Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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