9911796707
TMI Blog2022 (5) TMI 401X X X X Extracts X X X X X X X X Extracts X X X X ..... members of petitioner No.1. The petitioners claim to be in the business of advertisement on the advertisement hoardings licensed by respondent No.2- Hubballi Dharwad Mahanagara Palike. The petitioners are also stated to be registered as dealers under Section 22 of the Karnataka Value Added Taxes Act having received wide circulation in Form 7. 3. The petitioners claim to be making payments of advertisement tax regularly despite which the respondents have issued a notice dated 01.12.2014 at Annexure-A calling upon the petitioners to make payment of advertisement tax as regards advertisement hoardings used by them. 4. The contention of the petitioners is that on the enactment of the Goods and Service Tax Act (GST Act for brevity), the authority of the respondents to either levy or collect advertisement tax is ousted. Therefore, there could be no demand for advertisement tax post the enactment of the GST Act. 5. The respondents have collected the advertisement tax in terms of Section 134 of the Karnataka Municipal Corporations Act, 1976 (KMC Act for brevity). The power under Section 134 of the KMC Act flows from Entry 54, List II of Schedule VII of the Constitution of India. The sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is authorized to levy and collect the said advertisement tax/fee. On this ground he submits that the writ petition is liable to be dismissed. 12. Heard Sri. Zameer Pasha, learned counsel for the petitioners, Sri. Shivaprabhu Hiremath, learned AGA for respondent Nos.1 and 3 and Sri. G.I. Gachchinamath, learned counsel for respondent No.2. Perused papers. 13. The short but important question that arises for consideration in this matter are: i. Whether on coming into force of the GST Act a Municipal Corporation can levy advertisement tax/fee? ii. What order? 14. The GST Act has been introduced pursuant to 101st amendment to the Constitution which among other things has introduced Article 246(A) to the Constitution. The GST Act has been introduced with the intention to simplify the process of collecting indirect taxes. The indirect taxes like excise duty, sales tax, service tax, etc., have been subsumed in the GST Act wherein GST is levied on the supply of services and or goods. 15. Article 246(A) of the Constitution of India is reproduced hereunder for easy reference: [246A. Special provision with respect to goods and services tax.-(1) Notwithstanding anything contained in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. The incidence of advertisement tax or advertisement fee is on the license granted by HDMC permitting the petitioner to put up hoarding or make use of the hoardings, this incidence of advertisement tax or fee has nothing to do with supply or service or goods by the petitioner to its clients. 22. In view of the above there are two distinct transactions. The incidence of tax on both transactions are different. 23. The first transaction is the permission by respondent No.2-HDMC to put up a hoarding or advertisement to use their hoarding for the purpose of advertisement, as regards which respondent No.1-HDMC charges the fee or advertisement tax. 24. The second transaction is on the petitioners making use of the hoarding to display advertisements of its clients towards which the petitioners charge their client which is a supply of services or goods as regards which the GST is liable to be paid. 25. Both the transactions being independent and distinct the incidence of both the GST and advertisement fee being on two distinct transactions inasmuch as the GST not being charged by the respondent No.1- HDMC and advertisement free not being charged by the GST authorities, though of cours ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Corporations Act reads as under: 134. Tax on advertisement. - Every person who erects, exhibits, fixes or retains, upon or over any land, building, wall or structure any advertisement or who displays any advertisement to public view in any manner whatsoever, in any place whether public or private, shall pay on every advertisement which is so erected, exhibited, fixed, retained or displayed to public view, a tax calculated at such rates and in such manner and subject to such exemptions, as the corporation may, with the approval of the Government, by resolution determine: Provided always that the rates shall be subject to the maxima and minima laid down by the Government in this behalf: Provided further that no tax shall be levied under this section on any advertisment or a notice,- (a) of a public meeting, or corporation of the city, or (b) of an election to any legislative body, or (c) of a candidature in respect of such an election: Provided also that no such tax shall be levied on any advertisement which is not a sky-sign and which,- (a) is exhibited within the window of any building; or (b) relates to the trade or business carried on within the land or buildin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , platform or station approach belonging to a railway, and so placed that it cannot fall into any street or public place; or
(e) any notice of land or buildings to be sold, or let, placed upon such land or buildings.
Explanation 3. - 'Public place' shall, for the purpose of this section, mean any place which is open to the use and enjoyment of the public, whether it is actually used or enjoyed by the public or not.
32. In the present case, there is no challenge either to Section 134 of the Karnataka Municipal Corporations Act nor is there a challenge made to GST Act. The only reliefs which have been sought for are for setting aside the impugned demand notice at Annexure-A and a writ of prohibition directing the respondents not to meddle with the advertisement display and the hoardings of the petitioners.
33. For all the aforesaid reasons, I pass the following:
ORDER
(i) The writ petition is dismissed.
(ii) It is declared that there is no conflict between the power to levy GST under GST Act and power of Municipal Corporation to levy advertisement fee or advertisement tax under Section 134 of the Karnataka Municipal Corporations Act. X X X X Extracts X X X X X X X X Extracts X X X X
|
