2022 (5) TMI 401

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....vertising 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 01.12.2014 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, Li....

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....ge 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. 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. ....

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....arding 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. 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 ....

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....sement 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, 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 ....