Kerala HC: Orders Issued U/S 73 Of CGST Act Must Carry Digital Or Physical Signature Of Officer In Order To Be Treated As Valid

 On consideration of the submissions advanced and the legal provisions, we are of the view that Section 160 of CGST Act 2017 is not attracted. An unsigned order cannot be covered under any mistake, defect or omission therein as used in Section 160. The said expression refers to any mistake, defect or omission in an order with respect to assessment, re-assessment; adjudication etc and which shall not be invalid or deemed to be invalid by such reason, if in substance and effect the assessment, reassessment etc is in conformity with the requirements of the Act or any existing law. These would not cover omission to sign the order. Unsigned order is no order in the eyes of law. Merely uploading of the unsigned order, may be by the Authority competent to pass the order, would, in our view, not cure the defect which goes to the very root of the matter i.e. validity of the order. {Para 7}

IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP (C) Nos. 20656/2024,

Decided On: 29.11.2024

Fortune Service and Ors. Vs. Union of India and Ors.

Hon'ble Judges/Coram:

Gopinath P., J.

Citation: MANU/KE/5023/2024.

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Whether Municipal Corporation can collect license fees for erection of the advertisement hoardings?

The petitioner has also sought declaration that after the introduction of the Goods and Service Tax (for short "the GST") with effect from 1st July 2017 in light of the 101st Amendment of the Constitution, the respondent Corporation cannot collect any tax on advertisement hoardings in the private properties and consequently cannot collect any license fees in garb of tax for the advertisement hoardings in the private properties. {Para 4}

5. The petitioner has also challenged the constitutional validity of the Section 386(2) of the Gujarat Provincial Municipal Corporation Act, 1949 (for short "the GPMC Act") and sought declaration that the said provision is ultra vires to the Article 243X of the Constitution of India.

37. In view of the above dictum of law, provisions of Sub-section-2 of Section 386 of the GPMC Act is constitutionally valid as per Etnry-5 read with Entry-66 of list-II of the VIIth Schedule and deletion of Entry-55 of list-2 cannot be said to have any effect on the power to levy fees as provided by Section 386(2) of the GPMC Act.

 Whereas in the facts of the present case, section 386(2) of the GPMC Act provides for levy of license fees for license to place advertising hoardings in private properties for license to be issued as per provisions of the GPMC Act and hence the same can never be considered as tax because the person who is granted license will have privilege to place advertising hoarding in private property and for granting such privilege fees is levied.

45. As we are of the opinion that the license fee levied for granting license for placing advertising hoardings in private property is "fee" and not "tax". 

Gujarat High Court

Selvel Media Services Private limited vs The Municipal Corporation Of The city of Ahmedabad... on 20 October, 2020

Bench: J.B.Pardiwala, Bhargav D. Karia

   C/SCA/4538/2019      

Read full Judgment here: Click here

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Whether on coming into force of GST Act a Municipal Corporation can levy advertisement tax/fee?

 The GST as stated above is levied on any supply of goods or services. The petitioners carrying on advertisement business it is during the course of the said business that the petitioner is required to collect GST from any of its/their clients and remit it to the authorities. It is not that the petitioners are making payments of GST out of their own pockets. The petitioners supplying services and or goods, on the invoice that the petitioners were to raise on their respective clients the invoice amount would be required to be accompanied by a GST amount on the basis of the categorization of services and or goods under the GST Act. The said GST collected from the client of the petitioners, the amount is required to be remitted by the petitioners to the GST authorities. {Para 18}

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. 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 course there may be GST charged on the Advertisement Fee charged by the HDMC, I am unable to accept the submission of Sri. Zameer Pasha that there is double taxation.

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.

 IN THE HIGH COURT OF KARNATAKA (DHARWAD BENCH)

Writ Petition No. 104172 of 2021 (LB-TAX)

Decided On: 21.04.2022

 Hubballi Dharwad Advertisers Association (R) and Ors.  Vs. State of Karnataka and Ors.

Hon'ble Judges/Coram:

Suraj Govindaraj, J.

Citation: MANU/KA/1857/2022

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Whether Municipal Corporation is entitled to recover advertisement tax?

In addition to the above, even the power of the State

Government to legislate regarding advertisement tax as

provided under Entry 55 of List II of the VII Schedule of

the Constitution of India also stood deleted w.e.f.

12.9.2016 by the Constitution (101 Amendment) Act,

2016.

Article 265 of the Constitution of India mandates that no

tax shall be levied or collected except by the authority of

law. Therefore, the authority to levy any tax much less the

advertisement tax must be derived from the Statutes.

Since the provision of Section 2 (h) of Section 172 of the

Municipal Corporation Act was omitted vide Section 173

of the U.P. GST Act w.e.f. 1.7.2017 and even the power of

the State legislature to legislate with regard to

advertisement tax stood deleted w.e.f. 12.9.2016, there is

neither any power left with the State Government or the

Municipal Corporation to legislate about the imposition of

tax on advertisement.

In view of the above, after 12.9.2016 or from 1.7.2017 the

Nagar Nigam, Kanpur ceased to have any jurisdiction to

impose and realize tax on advertisement. Accordingly, the

demand of tax on advertisement from the petitioners after

1.7.2017 is held to be illegal and without jurisdiction.

The notices of demand impugned in the petition to the

above extent are quashed and the amount, if any of the

advertisement tax deposited by the petitioners for the

period 1.7.2017 onwards shall be refunded to the

petitioners.

 ALLAHABAD HIGH COURT

Case :- WRIT TAX No. - 354 of 2018

 M/S Selvel Media Services Private Limited And 11 Others Vs

State Of U.P. And 4 Others

Hon'ble Pankaj Mithal,J.

Hon'ble Prakash Padia,J.

Dated: 6.5.2019

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