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TMI Blog2022 (5) TMI 401X X X X Extracts X X X X X X X X Extracts X X X X ..... JUSTICE SURAJ GOVINDARAJ PETITIONERS (BY SRI.U G KATTIMANI, ADVOCATE AND SRI.ZAMEER PASHA, ADVOCATE) RESPONDENTS (BY SRI.SHIVAPRABHU HIREMATH, AGA FOR R1 R3, SRI.G.I.GACHCHINAMATH, ADVOCATE FOR R2) ORDER 1. The petitioners are before this Court seeking for the following reliefs: (i) issue a writ or order or direction setting aside the impugned demand notice vide Annexure A7 dated 13.06.2018 issued by the respondents. (ii) issue a writ of prohibition or order or direction to the respondents not to meddle with the advertisement displays and hoardings of the petitioners. 2. Petitioner No.1 is a registered association of the advertising agencies and petitioner Nos.2 to 6 are the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Municipal Corporation to contend that advertisement tax is more of a fee though it has been termed as tax, it would have to be construed as a fee. This fee is levied for the license granted to the petitioner and its members to exhibit advertisements on the advertisement hoarding on the land belonging to respondent No.2 and or private parties. Without such license, the petitioner cannot display any advertisement, the fee is charged for such display and the same has nothing to do with GST as claimed by the petitioner. Both of them stand on different footings. 11. If it all the petitioners are aggrieved by the levy of GST, the petitioners have to challenge the same. Insofar as advertisement tax is concerned, respondent No.2 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. Wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, the amount is required to be remitted by the petitioners to the GST authorities. 19. In this transaction the petitioners are only a collecting agency who collects the GST payable on the service rendered and deposits the same with the authorities, the incidence of tax, i.e., GST being on the services rendered or goods supplied, the obligation of payment being on the person availing the service and or receiving the goods. 20. The incidence of GST is on the service rendered by the petitioner to its clients and has nothing to do with respondent No.2-HDMC. The transaction with HDMC is the permission and or license granted by the HDMC to put up hoarding and or use a hoarding either on the land belonging to the HDMC and or on land belonging to a private party. 21. 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taxes, duties, tolls and fees levied and collected by the State Government for such purposes and subject to such conditions and limits; (c) provide for making such grants-in-aid to the Municipalities from the Consolidated Fund of the State; and (d) provide for constitution of such Funds for crediting all moneys received, respectively, by or on behalf of the Municipalities and also for the withdrawal of such moneys therefrom, as may be specified in the law. 30. After examining all aspects, the Gujarat High Court has come to a conclusion that the charges levied by the Municipal Corporation permitting putting up of advertisement is more of a fee than a tax inasmuch as there is a quid pro quo by way of permission to put up an advertisement hoarding. 31. Section 134 of the Karnataka Municipal 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, reta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , unless adapted or used wholly or in part for the purpose of any advertisement; or (b) any sign, or any board, frame or other contrivance securely fixed to or on the top of the wall or parapet of any building, or on the cornice or blocking course of any wall, or to the ridge of a roof: Provided that such board, frame or other contrivance be of one continuous face and not openwork, and does not extend in height more than one meter above any part of the wall or parapet or ridge to, or against, or on which it is fixed or supported; or (c) any advertisment relating to the name of the land or building, upon or over which the advertisement is exhibited, or to the name of the owner or occupier of such land or building; or (d) any advertisement relating exclusively to the business of a railway, and placed wholly upon or over any railway, railway station, yard, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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