2014 (5) TMI 720

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.... in the business of offering publicity services. It had already put up structures and advertisement boards at their own cost in a leased out premises. The assessee herein leased out its right to use the hoardings its structure to different companies during the currency of lease. The assessee submitted that even by allowing the parties to occupy the spaces for putting up advertisement boards, they would continue to have the possession and control over the property. There was no transfer of right to use goods as it had been contemplated under Section 3A of the Act. In the absence of any transfer or right to use any goods, the assessment was not justified. The Assessing Officer however rejected the contention of the assessee following the deci....

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.... The Tribunal pointed out that there was no transfer of possession of the hoardings which were erected on the earth on concrete foundation. In the circumstances, the hoardings thus being a part of immovable property. 3. Learned Special Government Pleader (Taxes) submitted that the assessee does not deny the fact that anybody in the advertisement business on contract basis could put up hoardings on behalf of the assessee. Considering the fact that the hoardings could be removed at any time, or at the expiry of term of lease, the hoardings in fact fall under Section 3A of the Act, referred to the decision of the Tamil Nadu Taxation Special Tribunal reported in 113 STC 403 UPASANA FINANCE LIMITED v. STATE OF TAMIL NADU, pointed out that in th....

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....undations. They cannot be removed without causing damage to hoardings. ii) Transferee is not physically possessing the hoardings. iii) Entire maintenance and upkeep of hoardings is done by respondent only. iv) The job of painting the designs or display matter is also done by the respondent. v) The respondent is also responsible for damages for fall of hoardings during heavy rain storm or anyother causes and respondent has to carry out necessary periodical repair work for keeping them in good conditions. vi) Entire licence charge to Chennai Corporation and insurance were paid by the respondent only. 7. In the context of the above factual aspect that the hoardings were erected on earth on concrete foundation that cannot be removed witho....

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....e Section 3A of the Act. In that context, the Tribunal held that each case has to depend upon the facts. Ultimately, it is the Officer who has to go into the issue. Consequently, the Special Tribunal directed all the cases to be decided in terms of the materials available. The Tribunal further pointed out to the decision reported in 89 STC 1 SELVEL ADVERTISING PRIVATE LIMITED v. COMMERCIAL TAX OFFICER, ALIPORE CHARGE, the case relating to the erection of hoardings wherein the West Bengal Special Taxation Tribunal rejected the arguments that it was an immovable property. Further in that case it was found that there was nothing to show that possession and control of the hoardings and structure remained with the assessee during the period of c....