STATE OF TAMIL NADU Vs. TVL JAYALAKSHMI ENTERPRISES

JUDGEMENT

(1.) THE assessment herein relates to 1993-94. THE Revenue is on revision as against the order of the Tribunal. THE issue herein relates to assessability of turnover under Section 3A of the Tamil Nadu General Sales Tax Act. THE assessee herein is engaged 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 decision of the 89 STC 1 " SELVEL ADVERTISING PVT. LTD v. C.T.O., and thus made the assessment. Aggrieved by the same, the assessee went on appeal before the Appellate Assistant Commissioner who pointed out that the Assessing Officer had not indicated in his order as to how the elements of transfer, right to use and goods were present in assessee's case. THE Appellate Authority further pointed out that since there was no transfer of possession and that the hoardings are part of the immovable property, the question of attracting charge under Section 3 A of the Tamil Nadu General Sales Tax Act did not arise. Thus, the Appellate Authority allowed the appeal filed by the assessee.

(2.) ON further appeal by the Revenue before the Sales Tax Appellate Tribunal, the Revenue contended that considering the fact that the structure erected could be removed on the expiry of the term of lease, the structures could not be called as permanent one as an immovable property. In the circumstances, the Revenue contended that the turnover was liable to be assessed under Section 3A of the Act. The Tribunal considered the said contention in the light of the decision reported in 89 STC 1 " SELVEL ADVERTISING PVT. LTD v. C.T.O., and the Tamil Nadu Taxation Special Tribunal in its decision reported in 113 STC 403 " UPASANA FINANCE LIMITED v. STATE OF TAMILNADU, following the decision 89 STC 1 " SELVEL ADVERTISING PVT. LTD v. C.T.O., and on facts, held that the provisions of Section 3A of the Act were not attracted. 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.) HEARD learned Special Government Pleader appearing for the Revenue and learned counsel for the assessee.