VISMAYA ADVERTISING Vs. INTELLIGENCE OFFICER (IB)

JUDGEMENT

(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.