THE HON’BLE THE CHIEF JUSTICE ALOK ARADHE AND THE HON’BLE SHRI JUSTICE ANIL KUMAR JUKANTI WRIT PETITION No.35543 OF 2012 ORDER: (Per Hon’ble Shri Justice Anil Kumar Jukanti)

Mr. K.P. Amarnath Reddy, learned counsel representing Mr. Karthik Ramana Puttamreddy, learned counsel for the petitioner.

Mr. B. Narasimha Sarma, learned Additional Solicitor General of India representing Mr. Gadi Praveen Kumar, learned Deputy Solicitor General of India for respondent No.3.

2. This writ petition is filed seeking the following relief:

“…to issue Writ of Certiorari or any other appropriate order or direction (a) calling for the records on the file of the 1st Respondent relating to the assessment order dated 15.10.2012 for the period 2006-07 under APVAT Act, 2005 and quash the order of assessment dated 15.10.2012, as passed without proper authorization from the Deputy Commissioner.

(b) to declare that the transactions fall under Section

65(105)(zzzm) of the Finance Act, 1994 and that the Petitioner is not liable to pay VAT under Section 4(8) of the APVAT Act on this turnover.

(c) to declare Section 4(8) of the APVAT Act as travelling beyond Entry 54 of List II of the Seventh Schedule to the Constitution of India in so far as it seeks to levy tax on a service transaction without identifying the value of sale involved.

(d) in the alternative if the transactions entered into by the Petitioner are to be treated as transferring right to use goods attracting tax under Section 48 of the APVAT Act declare that the Petitioner is entitled to pay at 4 only under Section 48(B) of the APVAT Act.

(e) and further declare that the payment of service tax of Rs.1,45,99,350/- by the Petitioner and the retention of same by 3^rd and 4^th Respondent as without authority of law and contrary to Article 265 of the Constitution of India and consequently direct 3rd and 4th Respondents to transfer the amount of Rs.1,45,99,350/- paid as service tax for the period 2006-07 to the credit of 1st Respondent towards VAT dues payable as per impugned order of the 1st Respondent and pass such other order or orders as this Hon’ble Court may deem fit and proper in the interest of justice”.

3. Facts giving rise to filing of this petition in nutshell are that the petitioner is in the business of leasing of hoardings to various customers for display of advertisements. The Commercial Tax Officer passed orders of assessment dated 25.09.2009 for a period from 2005-06 to 2008-09 levying service tax under Section 4(8) of the Andhra Pradesh Value Added Tax Act, 2005 (for short ‘the VAT Act, 2005’) on the amounts received for leasing of hoardings. The aforesaid orders of assessment were challenged by the petitioner in a batch of writ petitions, namely W.P.Nos.23810, 23811, 23816 and 23839 of 2009. A Division Bench of this Court by a common order dated 11.02.2009 directed the Commercial Tax Officer to issue fresh show cause notice to the petitioner and to afford an opportunity of hearing and thereafter to pass fresh orders. In compliance of the aforesaid order, the Commercial Tax Officer issued a show cause notice on

30.08.2011. The petitioner filed objections on 05.10.2011.

4. Thereafter a fresh notice dated 16.01.2012 was issued. The petitioner filed a reply on 31.01.2012. The opportunity of personal hearing was afforded to the petitioner on 22.06.2012 and thereafter the Commercial Tax Officer by an order dated 15.10.2012 levied tax on the transactions under Section 4(8)

of the VAT Act, 2005 for the period from 2006-07. The aforesaid order of assessment is under challenge.

5. The learned counsel for the petitioner submitted that the petitioner is not a dealer within the meaning of Section 2(10) of the VAT Act, 2005 and therefore did not register itself as a dealer. It is submitted that hoardings installed and erected for display of advertisements for a specific period cannot be considered as goods within the meaning of Section 2(16) of the VAT Act, 2005 and therefore, the petitioner cannot be fastened wi