9911796707
TMI Blog2011 (8) TMI 585X X X X Extracts X X X X X X X X Extracts X X X X ..... s the data of the subscriber to identify the subscriber to the petitioner's network. These SIM cards are available through shopkeepers, who are not the agents of the petitioner, but conduct the business of the petitioner company in addition to other business, on a commission basis. These shopkeepers are required to distribute the SIM cards and coupons to their prospective customers. In order to provide information to the prospective customers that it is dealing in the petitioner's product, necessary hoardings are placed over their shop. The glowsigns, signboards, etc. is only intended to inform the customer of the trade and business being carried out in that shop which the petitioner has erected/placed/affixed on the shop. The petitioner in Writ Petition Nos. 340 (M/S) of 2011, 341 (M/S) of 2011 and 342 (M/S) of 2011 is a Company registered under the Companies Act, 1956 and carries on the business of manufacture and marketing of carbonated beverages and soft drinks. The products are available to the consumers through various retail outlets owned and operated by independent retailers. It is contended that such retail outlets, display over their premises, sign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned senior counsel for the petitioner is, that the respondents have no power or authority under any law or enactment either to impose a tax or a fee on Advertisement nor have power to delegate such power, if any, to a private agency. The learned counsel submitted that the work order issued to the private respondent to realize tax or fee was wholly illegal coupled with the fact that the bills raised was without any authority of law and was liable to be quashed. In reply, the learned counsel for the respondents submitted that the Nagar Panchayats and the Nagar Parishads have the power and the authority to realize the tax under Section 128 of the U.P. Municipalities Act, 1916 (hereinafter referred to as the Act). Another counsel submitted that only a licence fee was being realised under the bye-laws framed under Section 298 of the Act. In the light of the contradicting stand taken by different Nagar Parishads and Nagar Panchayats, it would be appropriate to deal with the situation, as to whether the charge sought to be levied upon the petitioner is a tax or a fee. The source of the power to make exclusive laws is derived from Article 246 of the Constitutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e collection, removal and disposal of excrementious and polluted matter from privies, urinals, cesspools;] (xi)[***] (xiii-A) [***] (xiii-B) a tax on deeds of transfer of a immovable property situated within the limits of the Municipality;] (xiv) [***] (1) Provided that taxes under clause (iii) and (ix) of sub-section (1) shall not be levied at the same time [nor shall the taxes under clauses (x-a) and (xii) of sub-section (1) be levied at the same;] [Provided further that no tax under Clause (xiii-B) of sub-section (1) shall be levied on deeds of transfer of immovable property situated within such area of municipality as forms part of the local area of any Improvement Trust created under Section 3 of the U.P. Town Improvement Trust, 1919 (U.P. Act VIII of 1919)]; Provided also that no tax under Clause (iv) of sub-section (1) shall be levied in respect of any motor vehicle]. (2) Nothing in this section shall authorize the imposition of any tax which the (State Legislature) has no power to impose in the [State] under [the Constitution]: Provided that a [Municipality] which immediately before the commencement of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the delegated authority must act strictly within the parameters of the authority delegated to it under the Act and it will not be proper to bring the theory of implied intent or the concept of incidental and ancillary power in the matter of exercise of fiscal power." In the light of the aforesaid, the Court holds that neither Section 128 of the Act nor Section 119 of the Adhiniyam confers any power on the Nagar Parishad or on the Zila Panchayat to levy or realise Advertisement Tax on glowsigns, signboards which are placed on the private shops. A licence fee can be imposed under Section 294 of the Municipalities Act. For facility, the said provision is executed hereunder: "294. Licence fees, etc - A Municipality may charge a fee to be fixed by bye-law for any licence sanctioned or permission which it is entitled to require to grant by or under this Act." Under this provision, a fee could be charged as fixed by a bye-law. Section 298 of the Act gives power to a Municipality to make bye-laws which are consistent with the Act. Under Category 'H' of List I, a municipality can frame a bye-law for regulating the posting of bills and advertisements. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cuits, etc. vs. Commissioner of Trade Tax, U.P., 1998 U.P.T.C. 1086, it has been held by the Supreme Court that subsequent legislation can be looked at in order to see what is the proper interpretation to be put in the legislation when it is found to be obscure or ambiguous or capable of more than one interpretation. In identical situation, in Bharti Airtel Limited vs. State of U.P. and others, in Writ Petition No. 7848 of 2010 (M/S), the Lucknow Bench of the Allahabad High Court held that the action of the respondents in imposing Advertisement Tax and thereafter awarding contracts to private agencies for realizing the tax on hoardings, signboards and glowsigns on private shops by the company for advertising their products where the company's business was being carried out was invalid and consequently quashed the notices. The said judgment is squarely applicable to the present case. In the light of the aforesaid, it is held that neither the Nagar Parishad nor the Nagar Panchayat have any authority of law to levy a tax or a fee on Advertisements placed by the petitioners over the private shops or buildings where they are carrying on their business. Consequently, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
