w w w . L a w y e r S e r v i c e s . i n



M/s. Vismaya Advertising, Ernakulam, Represented by Its Manager Sunil S. Menon & Another v/s The Intelligence Officer (IB), Department of Commercial Taxes, Mattancherry at Aluva & Others


Company & Directors' Information:- MENON AND MENON LIMITED [Active] CIN = U29119MH1969PLC014404

Company & Directors' Information:- I. B. COMMERCIAL PRIVATE LIMITED [Active] CIN = U70101MH2007PTC167888

Company & Directors' Information:- R. M. COMMERCIAL PRIVATE LIMITED [Active] CIN = U51909WB2007PTC119841

Company & Directors' Information:- G L COMMERCIAL LIMITED [Active] CIN = U74130DL1985PLC020182

Company & Directors' Information:- T. R. COMMERCIAL PRIVATE LIMITED [Active] CIN = U67120OR2008PTC010275

Company & Directors' Information:- H C COMMERCIAL LTD [Active] CIN = U72300WB1970PLC027736

Company & Directors' Information:- M B COMMERCIAL CO LTD [Active] CIN = L51909WB1960PLC024849

Company & Directors' Information:- M B COMMERCIAL CO LTD [Active] CIN = U51909WB1960PLC024849

Company & Directors' Information:- A R COMMERCIAL PRIVATE LIMITED [Active] CIN = U17210WB2011PTC170257

Company & Directors' Information:- V & G COMMERCIAL PRIVATE LIMITED [Active] CIN = U51909MH2011PTC213338

Company & Directors' Information:- H G COMMERCIAL PVT LTD [Active] CIN = U52190WB1991PTC050743

Company & Directors' Information:- S B P COMMERCIAL PVT LTD [Active] CIN = U51101AS1996PTC004692

Company & Directors' Information:- R K COMMERCIAL LTD [Active] CIN = L65993WB1982PLC035298

Company & Directors' Information:- L R COMMERCIAL PVT LTD [Active] CIN = U70102WB1995PTC073665

Company & Directors' Information:- P. B. S. ADVERTISING PRIVATE LIMITED [Active] CIN = U74300DL2011PTC223507

Company & Directors' Information:- J K COMMERCIAL CORPN LTD [Strike Off] CIN = U65923UP1943PLC001188

Company & Directors' Information:- M M K COMMERCIAL PRIVATE LIMITED [Active] CIN = U27100WB2008PTC128229

Company & Directors' Information:- M G B COMMERCIAL PVT LTD [Amalgamated] CIN = U74950WB1993PTC060732

Company & Directors' Information:- V A M COMMERCIAL CO LTD [Active] CIN = U51909WB1983PLC036163

Company & Directors' Information:- R C COMMERCIAL PRIVATE LIMITED [Active] CIN = U67120UP1992PTC014057

Company & Directors' Information:- D G COMMERCIAL PRIVATE LIMITED [Converted to LLP] CIN = U52100AS2007PTC008457

Company & Directors' Information:- INDIA INTELLIGENCE PRIVATE LIMITED [Active] CIN = U72200TG2000PTC034130

Company & Directors' Information:- S. K. ADVERTISING & CO. (P) LTD [Active] CIN = U74300WB2006PTC108584

Company & Directors' Information:- J B COMMERCIAL CO PVT LTD [Active] CIN = U51909WB1980PTC033099

Company & Directors' Information:- V & S COMMERCIAL PVT LTD [Active] CIN = U51909CT2006PTC001660

Company & Directors' Information:- A-Z COMMERCIAL PRIVATE LIMITED [Active] CIN = U51109DL1993PTC053697

Company & Directors' Information:- P J COMMERCIAL PRIVATE LIMITED [Strike Off] CIN = U52190WB2009PTC140508

Company & Directors' Information:- THE ADVERTISING CORPN OF INDIA PVT LTD [Active] CIN = U22121WB1941PTC010566

Company & Directors' Information:- P M COMMERCIAL CO LTD [Active] CIN = U51909WB1982PLC035383

Company & Directors' Information:- J M COMMERCIAL & CO LTD [Converted to LLP] CIN = U67120DL1982PLC242476

Company & Directors' Information:- S P COMMERCIAL CO LTD [Strike Off] CIN = U45201WB1982PLC035237

Company & Directors' Information:- B B COMMERCIAL LTD [Active] CIN = L51909WB1980PLC033130

Company & Directors' Information:- M A S H ADVERTISING PRIVATE LIMITED [Active] CIN = U74300MH2000PTC126742

Company & Directors' Information:- T T COMMERCIAL CO PVT LTD [Active] CIN = U70101WB1995PTC075032

Company & Directors' Information:- W & F COMMERCIAL PRIVATE LIMITED [Active] CIN = U51909WB2004PTC098442

Company & Directors' Information:- P R ADVERTISING PRIVATE LIMITED [Active] CIN = U74300MH2000PTC126873

Company & Directors' Information:- N P P COMMERCIAL PRIVATE LIMITED [Active] CIN = U51909DL2004PTC127585

Company & Directors' Information:- B. M. ADVERTISING PRIVATE LIMITED [Active] CIN = U74999WB2011PTC161382

Company & Directors' Information:- A. T. COMMERCIAL PRIVATE LIMITED [Active] CIN = U51909WB2008PTC127621

Company & Directors' Information:- U S COMMERCIAL PVT LTD [Active] CIN = U51502WB1992PTC057239

Company & Directors' Information:- A D COMMERCIAL INDIA PRIVATE LIMITED [Active] CIN = U51109AS1999PTC005668

Company & Directors' Information:- I D COMMERCIAL PRIVATE LIMITED [Active] CIN = U51109WB1980PTC032739

Company & Directors' Information:- S G COMMERCIAL CO PVT LTD [Strike Off] CIN = U15312WB1955PTC022120

Company & Directors' Information:- A & M COMMERCIAL PRIVATE LIMITED [Active] CIN = U72900DL2000PTC106023

Company & Directors' Information:- S P N COMMERCIAL PRIVATE LIMITED [Active] CIN = U52390WB2010PTC140826

Company & Directors' Information:- J. D. COMMERCIAL PRIVATE LIMITED [Active] CIN = U72200DL2009PTC188147

Company & Directors' Information:- J. D. COMMERCIAL PRIVATE LIMITED [Active] CIN = U34100DL2009PTC188147

Company & Directors' Information:- B COMMERCIAL PRIVATE LIMITED [Strike Off] CIN = U60230OR2011PTC014188

Company & Directors' Information:- M G COMMERCIAL PVT LTD [Active] CIN = U51109WB1960PTC024564

Company & Directors' Information:- K P COMMERCIAL PRIVATE LIMITED [Active] CIN = U72200GJ1999PTC036317

Company & Directors' Information:- B S COMMERCIAL COMPANY PVT LTD [Strike Off] CIN = U70101WB1985PTC038889

Company & Directors' Information:- A S COMMERCIAL PVT LTD [Active] CIN = U51909WB1989PTC047016

Company & Directors' Information:- B B C ADVERTISING PRIVATE LIMITED [Under Liquidation] CIN = U74300MH2004PTC147839

Company & Directors' Information:- S N H P COMMERCIAL PRIVATE LIMITED [Active] CIN = U51109WB2005PTC101704

Company & Directors' Information:- H M COMMERCIAL PRIVATE LIMITED [Strike Off] CIN = U52599WB2007PTC112975

Company & Directors' Information:- S. V. COMMERCIAL PRIVATE LIMITED [Active] CIN = U51909WB2010PTC145115

Company & Directors' Information:- S R COMMERCIAL PVT LTD [Active] CIN = U27209WB1987PTC041901

Company & Directors' Information:- G R COMMERCIAL PRIVATE LIMITED [Active] CIN = U74899DL2000PTC108839

Company & Directors' Information:- SUNIL & CO PVT LTD [Active] CIN = U32109WB1984PTC037810

Company & Directors' Information:- T J COMMERCIAL PRIVATE LIMITED [Strike Off] CIN = U51434WB2001PTC093979

Company & Directors' Information:- A S J COMMERCIAL PRIVATE LIMITED [Active] CIN = U15497DL2012PTC230407

Company & Directors' Information:- S B COMMERCIAL PVT LTD [Strike Off] CIN = U99999MH1982PTC028334

Company & Directors' Information:- K K ADVERTISING PVT LTD [Active] CIN = U74300WB1991PTC053172

Company & Directors' Information:- P P COMMERCIAL PVT LTD [Strike Off] CIN = U51909WB1986PTC041237

Company & Directors' Information:- M S ADVERTISING PRIVATE LIMITED [Active] CIN = U74899DL1995PTC071120

Company & Directors' Information:- B V COMMERCIAL PVT LTD [Active] CIN = U51109WB2006PTC108218

Company & Directors' Information:- D S COMMERCIAL PVT LTD [Strike Off] CIN = U26101WB1958PTC023936

Company & Directors' Information:- S R M COMMERCIAL PRIVATE LIMITED [Active] CIN = U51909WB2009PTC137093

Company & Directors' Information:- H T COMMERCIAL PRIVATE LIMITED [Active] CIN = U51109MH2010PTC209413

Company & Directors' Information:- D AND S ADVERTISING PRIVATE LIMITED [Active] CIN = U74300MH2001PTC132167

Company & Directors' Information:- O AND P ADVERTISING PRIVATE LIMITED [Strike Off] CIN = U74300MH2004PTC143880

Company & Directors' Information:- S M ADVERTISING PRIVATE LIMITED [Active] CIN = U74300MH2004PTC144225

Company & Directors' Information:- S & A ADVERTISING PRIVATE LIMITED [Strike Off] CIN = U74120MH2014PTC252046

Company & Directors' Information:- B C COMMERCIAL CO PVT LTD [Active] CIN = U51109WB1987PTC043138

Company & Directors' Information:- M V COMMERCIAL PRIVATE LIMITED [Active] CIN = U18101WB2010PTC150651

Company & Directors' Information:- VERSUS ADVERTISING PRIVATE LIMITED [Strike Off] CIN = U74300WB2000PTC092127

Company & Directors' Information:- B K ADVERTISING PRIVATE LIMITED [Strike Off] CIN = U22130DL2011PTC228806

Company & Directors' Information:- I AND E ADVERTISING PRIVATE LIMITED [Active] CIN = U67300DL1995PTC070550

Company & Directors' Information:- 7 INTELLIGENCE PRIVATE LIMITED [Active] CIN = U74900KA2012PTC063871

Company & Directors' Information:- S K INTELLIGENCE PRIVATE LIMITED [Strike Off] CIN = U74910GJ2012PTC068576

Company & Directors' Information:- U B COMMERCIAL PVT LTD [Strike Off] CIN = U51229WB1996PTC077559

Company & Directors' Information:- A K ADVERTISING PVT LTD [Strike Off] CIN = U74300MH1982PTC027490

    WA. No. 852 & OT. Appeal. No. 3 of 2018

    Decided On, 13 July 2020

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE K. VINOD CHANDRAN & THE HONOURABLE MR. JUSTICE T.R. RAVI

    For the Appellants: Harisankar V. Menon, K. Krishna, Meera V. Menon, Advocates. For the Respondents: Government Pleader (B/O), Mohammed Rafiq, Senior Government Pleader.



Judgment Text


Vinod Chandran, J.

1. The other tax appeal is from an order under section 94 (7) of the Kerala Value Added Tax Act, 2003 ( for short "KVAT Act") and the writ appeal from the judgment of a learned Single Judge which followed the decision of a Division Bench of this Court. The issue raised is identical and the appellants before us seek to distinguish on facts the transaction which was the subject matter of the Division Bench decision in Delta Communications vs State of Kerala [(2016) 24 KTR 139(Ker).

2. Sri Harisankar V Menon, the learned Counsel appearing for the appellant would submit that the transaction of the appellants/assessees is quiet distinguishable on facts from the transaction as seen from the reported judgment. Though the business carried on by the revision petitioner in the reported judgment and the aseessees are display of advertisements of third parties on hoardings erected by the assessees in leased out properties; the manner in which it is done is quiet distinct. The assessees do not at anytime transfer the right to use the hoardings. The hoardings are always in the possession and custody of the assessee's themselves. The agreement with the third parties is only for display of their advertisements in the hoardings erected by the assessee; the maintenance of which during the period of agreement is also carried on by the assessees. There is hence no transfer of right to use; is the specific contention taken. The learned Counsel also has a contention that the decision in Delta Communications is wrongly decided.

3. Sri.Mohammed Rafiq, learned Senior Government Pleader on the other hand would contend that insofar as the appellant in W. A No. 852/2018 is concerned, the issue stands covered inter partes as per Ext.P11 judgment in W. P(C) No. 40312/2016 and connected cases. The appellants contention therein was with respect to the clarification issued under Section 94 of the KVAT Act, which application was moved by the appellant in OTA No. 3/2018. The said clarification stood cancelled based on which a Division Bench on a reference made had found the specific transaction of M/s.Vismaya Advertising to be covered by the decision in Delta Communications. It is pointed out that both Delta Communications and Ext.P11 are challenged before the Honourable Supreme Court which SLPs have also been converted as Civil Appeals. M/s.Vismaya Advertising, the appellant in W. A No. 852/2018 who was also the the petitioner in W. P(C) 40312/2016 did not choose to challenge Ext. P11 judgment.

4. In any event, it is argued relying on the judgment of the Honourable Supreme Court reported in [(2019) 4 SCC 376 Khoday Distilleries Ltd. v. Sri. Mahadeshwara Sahakara Sakkare Karkhane Ltd. that there could be no reference to a larger Bench as argued by the learned Counsel for the appellants. It is asserted that there is transfer of right to use since the hoardings unlike buildings can be detached from the land or from the buildings on which they are erected without demolition of the same as has been held in Delta Communications. It has the character of goods and merely by reason of it being embedded to an immovable property, such character is not lost when the advertisement of a third-party is displayed on the hoardings and there is a transfer of right to use. On merits it is urged that even in cases where the goods are transferred with the employees of the owner/hirer in control, the Hon'ble Supreme Court has held that there is a transfer of right to use goods. [(2020) 3 SCC 354 Great Eastern Shipping Co. Ltd. v. State of Karnataka and others] departs substantially and considerably from the earlier decisions is the forceful submission.

5. The appellant in W. A No. 852/2018 points out that the clarification relied on in Ext. P11 judgment was set aside in Ext. P12. There is no finding on merits, as to the reasoning in the order dated 03.07.2017, relied on in Ext. P11 judgment. The order relied on by the Division Bench has been found to be nonest and in such circumstances the subsequent order made by the Commissioner under section 94 (7) on grounds of the clarificatory order being prejudicial to revenue has to be considered independently. If the facts herein are distinguishable from that considered in Delta Communications, necessarily a different view can be taken.

6. Ext.P11 judgment produced in the writ appeal did not consider the issue as raised before the clarificatory authority. We see from Annexure C order that the clarificatory authority after looking into the specific transaction, both on the display of advertisement in hoardings and wall paintings found neither a transfer of right to use in the former nor a works contract in the latter. The assessee had pleaded in its application, as can be discerned from Paragraph 9 of Annexure C order, that there is no possession handed over to the advertiser and it is the obligation of the assessee to erect the flex board, keep it in good condition without any damage and to rectify any damage which is occasioned, during the period of the agreement. The clarificatory authority also found that the entire transaction was subjected to service tax under the Finance Act, 1994, till 01.07.2002, when inclusion of selling of space for advertisement was included in the negative list.

7. Annexure B was passed noticing Delta Communications which was relied on by the Division Bench in Ext.P11 to reject the writ petitions filed on the basis of the clarificatory order. The Division Bench had not examined the reasoning in the clarificatory order or its cancellation. The Division Bench merely found that there could be no ground raised on the basis of the clarification order since it has been cancelled. The said order relied on by the Division Bench was set aside by the learned Single Judge in Ext.P12. It cannot be said that the subsequent order passed by the Commissioner invoking Section 94(7) cannot be adjudicated in the OTA for reason of Ext.P11 judgment of the Division Bench. If that be so, then necessarily the order relied on by the Division Bench could not have been set aside by a Single Judge. Ext.P11 is only to the extent that there could be no contention raised on the basis of the clarificatory order. We are also appraised of the fact that even Ext.P11 is challenged before the Hon'ble Supreme Court by some other writ petitioners wherein also the SLP's have been converted to Civil Appeals. The appellant in the Writ Appeal did not challenge Ext.P 11 and contends before us that there is a clear distinction from the facts in Delta Communications. We hence find no difficulty in proceeding with the adjudication in OTA 3/2018 as also consideration of the Writ Appeal on the distinctive facts pointed out.

8. To understand the chronology of events we first look at Annexure C order produced in OTA No. 3/2018, which is dated 09.11.2015. True; by the time Annexure C was passed the judgment in Delta Communications had already been delivered on 31.7.2015. Annexure C order did not notice Delta Communications. Annexure C considered the application filed by an assessee who had been displaying advertisements on flex boards mounted on hoardings as also by way of wall paintings. The walls on which the advertisements were made were taken on lease as was the right to erect the hoardings in landed properties or on existing buildings, from the owners. The clarificatory authority by Annexure C found that there is neither transfer of right to use insofar as the rent received for mounting flex boards on hoardings; nor is there any works contract on the advertisements displayed on pre-existing walls.

9. Later to Annexure C, the clarificatory authority which passed Annexure C passed Annexure D withdrawing the clarificatory order after being confronted with the decision in Delta Communications. The said withdrawal was challenged in which Annexure E judgment was passed by a learned Single Judge. Learned Single Judge found that there was no warrant for invoking Section 94 (8) since there is no fraud practiced or misrepresentation of facts, by the assessee. Annexure D order passed was set aside for reason of the clarificatory authority having no power to review its own orders. In the context of Annexure E judgment the Commissioner issued Annexure H invoking Section 94 (7), and passed the order impugned in the OT Appeal. That order modified the clarificatory order only with respect to the transaction of advertisements displayed on hoardings and retained the clarificatory order as against the advertisements displayed on walls.

10. Now moving on to W.A No.852/2018, the appellant therein, relying on the clarificatory order issued in the application of Drisya Advertising, the appellant in OTA No.3/2018, filed a writ petition against the notice of penalty issued. In a connected matter, one of us sitting single, issued Ext.P8 Reference Order noticing the clarificatory order issued in favour of M/s.Drisya Advertising and the decision in Delta Communications. Considering the reference in a batch of writ petitions, Ext.P11 decision was pronounced. The Division Bench in Ext.P11 relied on the order dated 03.07.2017 passed by the clarificatory authority itself under Section 94(8) of the KVAT Act which order later was set aside by a learned Single Judge in a Writ Petition; as noticed earlier.

11. It has been argued by Sri. Rafiq that Ext.P11 binds both parties as also this Court which is a Co-ordinate Bench. It is argued that Ext.P11 judgment categorically says that the issue is fully governed by the judgment in Delta Communications and the challenge raised by the assessees cannot be sustained. On the contrary Sri. Harisankar would contend that the operative portion of Ext.P11 permits the assessees to file their replies to the notices impugned and also enables an opportunity of hearing before the concerned authority. In that circumstance the assessee was perfectly within its right to raise the distinction on facts as noticed from Delta Communications.

12. Having read Delta Communications we have our own doubts. Even if the hoardings are capable of being dismantled and transferred as such, the advertiser has no such right as per the agreement. Further the effectiveness of the advertisement is inextricably connected with the particular spot or the situs of the immovable property on which the hoardings are situated; offering sufficient visibility for the advertisement to reach the maximum number of the general public. With all the respect at our command we express our inability to agree with the proposition declared. The proper course in that context would have been to make a reference to a larger Bench. However the decision in Delta Communications is already pending consideration in a Civil Appeal before the Hon'ble Supreme Court and a reference to a Larger Bench of this Court would be an unnecessary exercise. We hence bow to the dictum as laid down in Delta Communications; which does not prohibit us from considering the distinction on facts as argued by the learned Counsel for the assessee.

13. In Delta Communications the questions of law raised were: (i) whether 'hoardings' structures erected and permanently attached to movable property could be deemed to be goods?(ii) whether such 'hoardings' were at any time given to the possession of the person of the third party whose advertisement is displayed on it? And (iii) whether the Tribunal was justified in finding the transaction taxable under Section 6(1)(c) of the KVAT Act?

14. We have to specifically notice Paragraph 17 which considered the second question as to the person having possession of the hoardings which we extract hereunder:-

Para 17 (OT Rev.103/2012):

“But, according to us, so far as leasing out of hoardings in this case are concerned, once it is let out by entering into an agreement or work order, the owner of the goods ceases to have any control over the same for the reason that the advertisements are affixed on the hoarding by putting up and displaying necessary materials in accordance with the directions of the lessee and he has the effective control of the hoardings throughout the contract period entered into by him with the revision petitioner. The revision petitioner is unable to interfere with the nature of the advertisement carried out by the lessee in the hoardings since as per Annexure-D work order, it is his absolute right to finalise the nature of advertisement that is put up on the hoardings. Therefore, according to us, the absolute control of the hoardings is transferred to the lessee by virtue of Annexure D work order. Therefore, we are of the definite opinion that the control of the hoardings once it is passed for erecting advertising materials is left with the lessee absolutely for the period specified and therefore there is transfer of right to use as provided under Sec.6(1)(c) of the Act. Therefore the second question raised by the assessee is also answered in the negative and in favour of the Revenue.”

15. The learned Judges were of the definite opinion that the control of the hoardings is passed to the third party, for erecting advertisement materials and the same is left with them absolutely for the period specified. It is in this context that the learned Judges found a transfer of right to use. The distinguishing facts are to be noticed from the agreements as produced in the OTA and Writ Appeal.

16. In the OTA, Annexures A & A1 are the agreements by which the assessee obtained the right to erect a hoarding respectively in a landed property and a building for a definite period. Annexures B & B1 are agreements entered into with 3rd parties for the purpose of displaying their advertisements on the hoardings erected, on the strength of Annexures A and A1. The entire expenses for affixing and removing the advertisement on the hoardings has to be borne by the first party who is the assessee. The advertisements so displayed on the hoardings is exclusively that of the second party and obligation is on the first party “to keep the hoardings to look after and effect periodical maintenance of its advertisement of the hoarding during the period of the agreement”(sic). In such circumstances, Drisya Advertising, the appellant in OTA 3/2018, by the agreements do not effect any transfer of right to use. The mere fact that the advertisement of a third party is displayed on the hoarding does not warrant a finding of transfer of right to use the hoardings. It is an activity similar to that of a wall painting where the concept and idea is by the party which advertises its business. The flex board with the advertisement is supplied by the 3rd party which is mounted on the hoarding and maintained during the period of the agreement, by the assessee.

17. Like wise in the Writ Appeal, Ext.P1 series are the agreements by which the assessee obtained the right to erect hoardings. Ext.P2 series agreements are executed with the 3rd party for display of their advertisements. The assessee is described as lender and the advertiser as lendee. The lender specifically mentions the dimension of the hoardings and assures its strength and capacity to withstand natural calamities. If any destruction is caused to the hoardings and consequentially to the advertisement, it is the obligation of the lender to rectify it within two days of such damage caused. The lender also has the obligation to provide lateral support to the flex, which has to be maintained intact during the period of agreement. The lendee on providing the vinyl flex materials with the advertisement for display, it is the lender's responsibility to keep the board in a visible condition. The lender also has the obligation to appraise the advertiser of the condition of the hoarding and advertisement; maintained in a proper visible condition, by providing photographs every month. The lender-assessee thus has the obligation to maintain the advertisement in a proper condition so as to ensure its visibility during the entire period of the agreement. The hoarding along with the advertisement is hence in the possession of the lender. We do not find any transfer of right to use involved in the transaction which is the subject matter of consideration in W.A No.852/2018.

18. Sri. Rafiq placed heavy reliance on the decision of the Hon'ble Supreme Court Great Eastern Shipping Co. Ltd. It is pointed out that even when a vessel was transferred under a charter party agreement, with master and crew supplied by the owner of the vessel, it was held to be a transfer of right to use the goods. The contention of the owner of the vessel was that it was a mere contract of service since the complete control, ownership and possession of the vessel remained with them, through the master and crew supplied by the owner. The delivery if at all to the Port Trust was only a symbolic one. The learned Judges referred to the entire terms of agreement to find that the contractors/owners had 'let' and the charterer 'hired' the vessel for six months and the vessel had been placed at the disposal of the charterers and under their control in every respect. Merely for reason of providing the staff, insurance, indemnity and other responsibilities of bearing official costs, the effective control cannot be said to have been retained with the charterer/owner. It was further observed in Paragraph 44 that the decision does not turn upon the terms “let, hire, delivery and re-delivery”; “but on the other essential terms of the charter party agreement entered in the instant case which clearly makes out that there is a transfer of exclusive right to use the vessel which is a deemed sale and is liable to taxed under the KST Act. In the instant case, full control of the vessel had been given to the charterer to use exclusively for six months, and delivery had also been made. The use by charterer exclusively for six months makes it out that it is definitely a contract of transfer of right to use the vessel with which we are concerned in the instant matter, and that is a deemed sale

Please Login To View The Full Judgment!

as specified in Article 366(29-A) (d).”(sic.) 19. We have in fact referred to the specific agreements in this case to find that the effective control of the hoardings has not been transferred or delivered to the advertisers in the present case. The advertisers only provide the flex boards with the advertisements, which are mounted on the hoardings, the possession of which is retained with the assessees who also have the obligation to ensure the display of the advertisement during the contract period. The exclusivity spoken of, in the agreement, is to ensure that the advertiser does not display any other advertisement in the flex board supplied other than that of their own business. We do not think the facts in the decision cited on the basis of the specific terms of the agreement therein has any parallel to the nature of the transaction herein; as discernible from the terms spelled out in the agreements produced here. The agreements here, stand on a different footing. 20. On the above reasoning we allow the OT Appeal, setting aside the order of the Commissioner and upholding the order of the clarificatory authority specifically on the facts herein above noticed. As far as the writ appeal is concerned we set aside the order of the learned Single Judge finding the decision in O.T Rev.No.103 of 2012 to be on different facts from that arising in the writ appeal. On the basis of the finding entered by us, we set aside Ext.P14 order of penalty on merits since we have held that the transaction entered into by the appellant is not taxable under Section 6(1)(c) deeming it to be a sale of goods on transfer of right to use goods. We do not consider the further contention raised; of a penalty not being permissible on grounds of taxability of the transaction being a debatable issue, since on the terms of the agreements we have held the transaction to be not taxable as a transfer of right to use. The appeals are allowed leaving the parties to suffer their respective costs.
O R







Judgements of Similar Parties

09-09-2020 M. Kesava Menon, Editor, 'Mathrubhoomi' Daily, Mathrubhoomi Printing & Publishing Company Ltd., Kozhikode & Another Versus P. Raju & Another High Court of Kerala
01-09-2020 Sagar Sitaram Mitre Versus Bhanu Pratap, Intelligence Officer, Narcotics Control Bureau Sub-Zone, Goa In the High Court of Bombay at Goa
26-08-2020 M/s. Leo Activation, Division of Black Pencil Advertising Pvt. Ltd., Mumbai, Rep. by Its Director Versus The 49th All India Congress of Obstetrics & Gynecology, Kochi, Represented by Its Organizing Committee Chairman, Dr. V.P. Paily High Court of Kerala
24-08-2020 B. Sunil Kumar & Another Versus Cochin University of Science & Technology, Rep. by Its Registrar & Others High Court of Kerala
20-08-2020 M/s. Vantage Advertising Pvt. Ltd., Represented by its Authorised Signatory & Senior Operations Manager, A. Amalanathan Versus Coimbatore City Municipal Corporation, Represented by its Commissioner, Coimbatore & Another High Court of Judicature at Madras
17-08-2020 L. Subramanian Versus The Principal Secretary to Government, Commercial Taxes & Registration (A1) Department, Chennai & Others Before the Madurai Bench of Madras High Court
14-08-2020 Sunil Chillalshetti & Others Versus State of Chhattisgarh, through the Secretary, Medical Education Department, Chhattisgarh & Another High Court of Chhattisgarh
14-08-2020 P.P. Suresh Kumar, Managing Director, Kerala Communications Cable Ltd., Kochi & Another Versus The Deputy Director, Directorate General of GST Intelligence (DGGI), Thiruvananthapuram & Others High Court of Kerala
13-08-2020 Sunil Agrawal Versus Chhattisgarh Environment Conservation Board, Through its Chairman, Naya Raipur (C.G.) & Others High Court of Chhattisgarh
11-08-2020 P.V. Rao, Intelligence Officer Narcotics Control Bureau, Mumbai Versus Anil Baburao Pansare & Another High Court of Judicature at Bombay
30-07-2020 M/s. Ambady Enterprises, Chovva, Kannur, Represented by Authorised Signatory Versus The State of Kerala, Represented by Secretary to Government, Department of Commercial Taxes, Secretariat, Thiruvananthapuram High Court of Kerala
23-07-2020 Sunil N. Godhwani Versus State High Court of Delhi
23-07-2020 Sunil Rathee & Others Versus The State of Haryana & Others Supreme Court of India
07-07-2020 Kamla Nehru Educational Society Thru Secy. Shri Sunil Dev & Others Versus State of U.P. Thru Secretary Housing & Urban Planning & Others High Court Of Judicature At Allahabad Lucknow Bench
07-07-2020 Sunil Yadavrao Beedkar Versus The Divisional Commissioner, Aurangabad & Others In the High Court of Bombay at Aurangabad
03-07-2020 Subhash Joshi & Another Versus Director General of GST Intelligence (DGGI) & Others High Court of Madhya Pradesh Bench at Indore
03-07-2020 K.J. Sunil Versus State of Kerala, Represented by The Public Prosecutor, High Court of Kerala at Ernakulam & Another High Court of Kerala
01-07-2020 Sree Gokula Chit & Finance Co (Pvt.) Ltd Versus Sunil Sabu High Court of Kerala
01-07-2020 Ishwar Chander & Another Versus Sunil Saran High Court of Punjab and Haryana
30-06-2020 Sunil Raj, Corrected As Susil Raj (The Name of the Petitioner typed as “Sunil Raj” in the cause title of the Memorandum of Crl.M.C., Synopsis, Index and petition for Interim Direction and on The Docket is corrected as “Susil Raj” as per order dated 12.11.2019 in CRL.M.A.No.1/2019 in CRL.M.C.No.1797/2017.) Versus Gopan & Another High Court of Kerala
25-06-2020 Sunil @ Sunil Ashok Gadivaddar Versus State of Karnataka, Rep. by SPP, Bengaluru High Court of Karnataka
24-06-2020 The Renaissance, Palarivattom, Represented by P.N. Krishnadas, Managing Partner, Residing at Palarivattom, Kochi Versus Commercial Tax Officer (Luxury Tax) Class Towers, Ernakulam & Others High Court of Kerala
19-06-2020 K.S.R. Menon Versus Union of India & Others Supreme Court of India
17-06-2020 Ministry of Railways Through Divisional Commercial Manager Versus V. Vijay Kumar National Consumer Disputes Redressal Commission NCDRC
11-06-2020 Hanumanthappa Pathrera Lakshmana Versus State by Senior Intelligence Officer, Directorate General of Goods & Service Tax Intelligence, Bengaluru High Court of Karnataka
11-06-2020 M/s. E.V. Mathai & Sons, Represented by Its Managing Partner, Rubber Dealer, Kothamangalam Versus State of Kerala, Represented by The Secretary, Commercial Taxes Department, Thiruvananthapuram High Court of Kerala
05-06-2020 A.G. Chandrasekar Versus The State Represented by Deputy Superintendent of Police, Commercial Crime Investigation Wing CID, Chennai High Court of Judicature at Madras
05-06-2020 The Assistant Commissioner (Kvat), Commercial Taxes, Special Circle, Kottayam & Others Versus M/s. Kunnathukalathil Jewellers, Changanassery, Represented by Its Managing Partner K.V. Viswanathan High Court of Kerala
04-06-2020 Sunil Versus State of U.P. High Court of Judicature at Allahabad
01-06-2020 Birin Spinning Mills Limited, Rep its Director D. Rangaswamy & Others Versus The State of Tamil Nadu, Rep by the Secretary to Government Commercial Taxes Department, Chennai & Others High Court of Judicature at Madras
26-05-2020 R. Kannan Versus State of Tamil Nadu, Rep.by the Secretary to Government, Commercial Taxes and Religious Endowment Department, Chennai & Others High Court of Judicature at Madras
20-05-2020 M/s. Sun Pharmaceutical Industries Limited, Represented by its Authorised Signatory, Nilesh Mahendra Kumar Gandhi & Another Versus The Assistant Commercial Tax Officer (Check of Accounts) & Others High Court of Andhra Pradesh
20-05-2020 Sunil Kumar Aledia Versus Govt. of NCT of Delhi & Others High Court of Delhi
19-05-2020 Tvl. Aravind Thiru Ceramics represented by its Proprietor N.K. Thirugnana Sambantham Versus The Commercial Tax Officer, Roving Squad, (Enforcement) & Another High Court of Judicature at Madras
19-05-2020 Vestas Wind Technology India Private Limited Versus The Commercial Tax Officer, Enforcement, Roving Squad, Chengalpet & Others High Court of Judicature at Madras
19-05-2020 M/s. Krishna Timber & Plywood Versus State of Tamilnadu, rep. By its Principal Secretary to Government, Commissioner of Commercial Taxes, CT & Re Department & Others High Court of Judicature at Madras
19-05-2020 M/s. Dekshinamoorthi & Co., rep. by its Partner, D. Govindarajan Versus The Commercial Tax Officer & Another High Court of Judicature at Madras
19-05-2020 M/s. Bharat Steels represented by its Proprietor Gulraj M. Jain Versus The Commercial Tax Officer, Broadway Assessment Circle High Court of Judicature at Madras
19-05-2020 Sri Venkateshwara Agencies, represented by its proprietor K. Somasundar Versus The Commercial Tax Officer, Check Post Officer, Thoppur Inward, Kurinji Nagar & Another High Court of Judicature at Madras
19-05-2020 Vega Cotton represented by its proprietor V. Vivekanandan Versus The Check Post Officer, Deputy Commercial Tax Officer, Check Point-II, Hosur & Another High Court of Judicature at Madras
11-05-2020 M/s. Kopalle Pharma Chemicals Pvt. Ltd. Versus Senior Intelligence Officer High Court of for the State of Telangana
27-04-2020 Commercial Taxes Officer Versus M/s. Bombay Machinery Store Supreme Court of India
23-03-2020 J. Anbutamilarasi Versus The State of Tamil Nadu, Rep. by the Secretary, Commercial Taxes & Registration Department, Secretariat, Chennai & Others High Court of Judicature at Madras
17-03-2020 V.K. Anusree Versus Union of India, Represented by Director General, Central Economic Intelligence Bureau, New Delhi & Others High Court of Kerala
13-03-2020 M/s. Fossil India Private Limited, Represented by Sunil Prabhakaran Authorised Signatory Versus The Deputy Commissioner of Commercial Tax (Audit-5.4), Bengaluru & Others High Court of Karnataka
13-03-2020 M/s. Inno-Tech Electronics Systems, Rep. by it's Proprietor – M. Ravichandran Versus The Commercial Tax Officer, Mylapore Assessment Circle, Chennai & Another High Court of Judicature at Madras
12-03-2020 Sunil Kumar Mishra Versus State High Court of Delhi
11-03-2020 J. Nagarajan Versus Chief Commercial Manager, Southern Railway, Park Town, Chennai & Others High Court of Judicature at Madras
10-03-2020 Ashok Kumar Versus The Intelligence Officer, Narcotics Control Bureau, South Zonal Unit, Chennai – 90 High Court of Judicature at Madras
09-03-2020 M/s. Shyam Textiles Limited, Hosur Versus The Commissioner of Commercial Taxes, Chepauk, Chennai & Another High Court of Judicature at Madras
09-03-2020 The Commissioner of Commercial Taxes, Chennai & Another Versus Ramco Cements Ltd. rep. by its General Manager-Legal Thiru. T. Mathivanan, Chennai High Court of Judicature at Madras
06-03-2020 Senior Divisional Commercial Manager, Divisional Office, Commercial Branch, Southern Railway, Chennai Versus G. Bharathi High Court of Judicature at Madras
04-03-2020 Active Media Versus Divisional Commercial Manager, Northern Railway High Court of Delhi
04-03-2020 M/s. Commercial Steel Co. Versus ASC Sales Tax High Court of for the State of Telangana
03-03-2020 Hotel Surya, Iritty, Represented by Its Managing Partner, K.T. Mathew Versus The State of Kerala, Represented by Secretary To Government, Department of Commercial Taxes, Thiruvananthapuram High Court of Kerala
28-02-2020 SPI Cinemas Private Limited, Represented by its Director, K. Niranjan Reddy Versus Commercial Tax Officer, Royapettah Assessment Circle, Chennai High Court of Judicature at Madras
27-02-2020 M/s. Hansa Enterprises, Rep by its Proprietrix Pinky Jain Versus The Principal Commissioner & Commissioner of Commercial Taxes & Others High Court of Judicature at Madras
27-02-2020 Padmesh Cashew Company, Represented by its Proprietor Rajan Kalladan Versus The Commercial Tax Officer, Mahe High Court of Judicature at Madras
27-02-2020 Kumuthamalar Ramachandran Versus Joint Secretary (COFEPOSA), Government of India, Ministry of Finance Department of Revenue, Central Economic Intelligence Bureau, New Delhi & Others High Court of Judicature at Madras
27-02-2020 D. Soundararajapandian, Joint Commissioner (ST), Chennai(south), Commercial Taxes Department, Chennai & Others V/S The State of Tamil Nadu, Rep.by its Secretary, Commercial Taxes & Registration Department, Chennai & Others High Court of Judicature at Madras
26-02-2020 The Chennai Metropolitan Co-operative Housing Society Ltd., Chennai Versus The State of Tamil Nadu Rep.by its principal Secretary, Commercial Taxes and Registration Department, Chennai & Others High Court of Judicature at Madras
21-02-2020 P. Ponnum Perumal Versus The Additional Chief Secretary to Government (FAC) Commercial Taxes & Registration (H) Department, Chennai & Others High Court of Judicature at Madras
20-02-2020 M/s Century Rayon (A division of Century Textile & Industries Ltd.), Maharashtra V/S Maharashtra State Electricity Distribution Company Ltd., Through its, Chief Engineer (Commercial), Maharashtra And Others Appellate Tribunal for Electricity Appellate Jurisdiction
19-02-2020 K.A. Beevikunju & Another Versus The Union of India, (Represented by Its Director General), Central Economic Intelligence Bureau, Ministry of Finance, Department of Revenue, New Delhi & Others High Court of Kerala
19-02-2020 M/s. GAIL (India) Limited, R.K. Puram, New Delhi Versus M/s. Arkay Energy(Rameswaram)Limited, Rep. by its President (Commercial and Legal) R. Jarard Kishore & Others High Court of Judicature at Madras
18-02-2020 M/s. Shiv Mahadev Logistics Pvt. Ltd., Represented by its Director H. Sahadevram Choudhary, Chennai Versus The Senior Divisional Commercial Manager, Chennai High Court of Judicature at Madras
17-02-2020 Sunil Gandhi & Another V/S A.N. Buildwell Private Limited High Court of Delhi
13-02-2020 Commissioner, Commercial Taxes U.P. Lucknow Versus M/s. Narain Vegetable Products Sitapur High Court Of Judicature At Allahabad Lucknow Bench
13-02-2020 M/s. Vadim Infrastructure Private Limited. (formerly M/s.VolTech Infrastructure Pvt. Ltd., Represented by its Director R. Rajamanickam Versus M/s. Sunil HiTech Engineers Ltd., Rep. by its Chairman & Managing Director & Another High Court of Judicature at Madras
13-02-2020 Rambabu Singh Thakur Versus Sunil Arora & Others Supreme Court of India
12-02-2020 M/s. Sharadha Terry Products Ltd., Coimbatore Versus Tamil Nadu Sales Tax Appellate Tribunal (Additional Bench), Commercial Taxes Buildings, Coimbatore & Another High Court of Judicature at Madras
07-02-2020 M/s. Vinayaga Blue Metals, Represented by its Partner, P. Selvaraj Versus The State of Tamil Nadu, Represented by the Secretary to Government, Commercial Taxes Department, Chennai & Others High Court of Judicature at Madras
07-02-2020 Sri Kumaran Super Market, Dharmapuri District Versus The Commercial Tax Officer, Harur Assessment Circle, Dharmapuri District High Court of Judicature at Madras
07-02-2020 Thounaojam Lemba Singh Versus The Intelligence Officer, Narcotics Control Bureau, Manipur High Court of Manipur
06-02-2020 Sunil Kumar @ Sunil Versus State of Kerala Reptd. by Public Prosecutor, High Court of Kerala, Ernakulam High Court of Kerala
06-02-2020 K. Arumugham, Prop. Seetha Industries, Arakandanalu, Villupuram V/S The Secretary to Government, Department of Commercial Taxes & Religious Endowments, Chennai And Others High Court of Judicature at Madras
06-02-2020 Sunil Soni & Another Versus State of U.P. & Another High Court of Judicature at Allahabad
05-02-2020 Nandagopal Chetty & Another Versus Sunil & Others High Court of Judicature at Madras
04-02-2020 Sunil Kumar, Director, Zephyr Entrance Coaching Centre, Kunnumpuram Versus C.S. Abdul Jabbar Kerala State Consumer Disputes Redressal Commission Thiruvananthapuram
04-02-2020 M/s. Siddhi Vinayak Enterprises represented by its Proprietor R. Devika Versus The Senior Divisional Commercial Manager Southern Railway Divisional Railway Manager's Office Commercial Branch, Park Town Chennai High Court of Judicature at Madras
03-02-2020 M/s. Phoenix Rubbers, Palakkad, Represented By Sakkeer Hussain, Managing Partner Versus The Commercial Tax Officer, State GST Department, Palakkad & Others High Court of Kerala
31-01-2020 M/s. Indian Commercial Syndicate, Rep. by its Partner R. Natarajan, Coimbatore Versus The Special Committee, Secretariat, Chennai & Another High Court of Judicature at Madras
31-01-2020 Reckitt Benckiser (india) Ltd V/S Commissioner Commercial Taxes and Others Supreme Court of India
30-01-2020 Sunil Polist Versus CPIO /Manager (CRM)/EDMS Life Insurance Corporation of India Central Information Commission
28-01-2020 S. Shami @ Shamiyullah Versus The State, Represented by Intelligence Officer, Director of Revenue Intelligence, Chennai High Court of Judicature at Madras
27-01-2020 Muhammed Ameen & Another Versus The Narcotic Control Bureau, Cochin, Represented by Its Intelligence Officer, Through Its Special Public Prosecutor, High Court of Kerala, Ernakulam High Court of Kerala
24-01-2020 Tata Sky Limited, Represented by its Chief Financial Controller, Sambasivan Ganesan, Chennai Versus The State of Tamil Nadu, Represented by the Secretary, Commercial Taxes & Registration Department, Chennai & Another High Court of Judicature at Madras
23-01-2020 M/s. P.I. Polymers, Rep. by Proprietrix, Chennai Versus The Commercial Tax Officer, Pattarawalkam Assessment Circle, Villivakkam High Court of Judicature at Madras
21-01-2020 Ankit Ghanshyam Mutha Versus Union of India Through Directorate of Revenue Intelligence & Others High Court of Judicature at Bombay
21-01-2020 Nirmal Kumar Parsan & Others Versus Commissioner of Commercial Taxes & Others Supreme Court of India
21-01-2020 Sunil @ Sumit Versus State of Maharashtra In the High Court of Bombay at Nagpur
20-01-2020 R.C. Sood & Co. Developers Pvt. Ltd. Versus Sunil Bansal & Others National Consumer Disputes Redressal Commission NCDRC
17-01-2020 Sreekumar Menon Versus V. Ganeshan & Another High Court of Kerala
10-01-2020 M/s. Vira Properties (Madras) Pvt. Ltd, Chennai, Rep. by its Manager, T.M. Damodaran Versus Commercial Tax Officer, Chennai & Another High Court of Judicature at Madras
09-01-2020 Bruhat Bangalore Mahanagara Palike Versus Vijayan Menon & Others Supreme Court of India
08-01-2020 A. Ponnusamy Pillay & Sons Versus The Commercial Tax Officer Karaikkal & Another High Court of Judicature at Madras
06-01-2020 M/s. Prime Gold International Limited, Represented by its Director Achin Aggarwal & Another Versus The Additional Director General, The Directorate General of Goods and Services Tax Intelligence Coimbatore Zonal Unit, Coimbatore & Others High Court of Judicature at Madras
06-01-2020 TVL TCS Textiles Private Limited, Represented by its Authorised Signatry, R. Mahesh, Tirupur Versus The Prinicipal Secretary & Commissioner of Commercial Taxes, Ezhilagam, Chepauk & Another High Court of Judicature at Madras
06-01-2020 Asutosh & Another Versus Commercial Taxes Department (GST) & Others High Court of Madhya Pradesh Bench at Indore
20-12-2019 Global United Shipping India Private Limited, (formerly known as Jalhansa Enterprises Pvt. Ltd.), Represented by its Director, Prem Kumar Menon, Chennai Versus Traffic Manager, Chennai Port Trust, Chennai High Court of Judicature at Madras