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Judgment
Debangsu Basak, J.
The first writ petitioner is engaged in the business of advertisement. The writ petitioners claim to have entered into a contract with the respondent No. 3 for erection of advertisements at different sites to be provided by the respondent No. 3. The writ petitioners claim that, they were not permitted by the respondent No. 3 to put up advertisements in terms of the contract. Since the respondent No. 3 did not permit the writ petitioners to put up the advertisements, the writ petitioners are not liable to pay the advertisement tax demanded by the Kolkata Municipal Corporation. In course of hearing of the writ petition, learned Counsel for the writ petitioners gives up prayers (c) and (h) of the writ petition relating to refund of sum allegedly withheld by the respondent No. 3.
It is submitted on behalf of the writ petitioners that, the respondent No. 3 had floated a tender for advertisements. The first writ petitioner had participated therein and had been declared as the highest tenderer. A letter of acceptance was issued by the respondent No. 3 dated November 23, 2005. The writ petitioners had complied with all the terms and conditions of the tender. The writ petitioners, however, were not permitted to put the advertisements at the designated place by the respondent No. 3. The writ petitioners had been demanding justice from the respondent No. 3. It is submitted that, the Corporation authorities had demanded advertisement tax, sanction fee and permission fees by a writing dated March 27, 2006. Such demands relate to the contract for advertisement with the respondent No. 3. Since the respondent No. 3 did not permit the writ petitioners to set up the advertisements, the writ petitioners are not liable to pay any advertisement tax, sanction fee and permission fees as demanded by the Corporation authorities by their letter dated March 27, 2006. Learned Counsel for the writ petitioners submits that, the contract with the respondent No. 3 had expired on July 23, 2008. Advertisement tax beyond such period is not payable by the writ petitioners. Referring to the Calcutta Municipal Corporation Miscellaneous Regulation, 1984 particularly Regulation 9(16) of such Regulation of 1984 it is submitted that, the Corporation authorities have the power to impose penalty when advertisements are set up without permission of the Corporation authorities. The Corporation authorities does not have the power to demand advertisement tax, sanction fee and permission fees particularly when the respondent No. 3 has not permitted setting up of the advertisement under the contract.
Referring to the writing dated July 8, 2011 and the demand reconciliation report of the Corporation authorities, it is submitted on behalf of the writ petitioners that, the payments shown to have been made by the writ petitioners were not made.
The Corporation authorities are represented. It is contended on behalf of the Corporation authorities that, although the respondent No. 3 did not permit the setting up of advertisement by the writ petitioners, it would appear from the contemporaneous correspondence that, the writ petitioners did not deny that, advertisements were set up at the place under the contract of the respondent No. 3. Since advertisements have been set up and the conduct of the writ petitioners contemporaneously does not show that, the writ petitioners have not denied the setting up of advertisements, the writ petitioners are liable to pay on account of the advertisement tax, sanction fee and permission fees to the Corporation authorities. In this regard, the communication of the Police authorities dated February 27, 2007 and the response thereto by the writ petitioners by their letter dated February 28, 2007 have been referred to.
It is also contended on behalf of the Corporation authorities that, the writ petitioners were informed of the demand of the Corporation on account of the advertisement tax, sanction fee and permission fees. The representatives of the Corporation had visited the writ petitioners for a conciliation of accounts on diverse occasions. The writ petitioners were heard with regard to the reconciliation of the accounts. Ultimately by a writing dated July 8, 2011 the Corporation authorities had requested the writ petitioners to submit necessary documents with regard to the reconciliation of the accounts. A reconciliation statement was sent under cover a letter. The Corporation authorities had visited the writ petitioners for the purpose of reconciliation. Such reconciliation statement had been prepared after the representative of the Corporation had visited the writ petitioners. Referring to Sections 202, 203, 204 and 209 of the Kolkata Municipal Corporation Act, 1980 it is submitted that the writ petitioners are liable to pay advertisement tax, sanction fee and permission fees in respect of advertisement set up. It is contended that, an advertisement tax liability cannot await the permission of the respondent No. 3 to set up the advertisements.
The respondent No. 3 is represented. It is submitted on behalf of the respondent No. 3 that the respondent No. 3 was concerned with the prayers (c) and (h) made in the writ petition. It is also submitted that subsequent to the expiry of July 23, 2008 the respondent No. 3 had awarded a new contract to another party for advertisements. It is submitted that, the respondent No. 3 did not have sufficient man power to check as to whether any advertisement has been set up by the writ petitioners at the locale at that material point of time. In this regard reference is made to the communication of the Police authorities dated February 27, 2007 to the writ petitioners and its response dated February 28, 2007.
I have considered the rival contentions of the parties and the materials made available on record.
The first writ petitioner is engaged in the business of advertisement. It had participated in the tender of the respondent No. 3. The respondent No. 3 had issued a letter of acceptance on November 23, 2005. The tender was in respect of advertisement rights for display of Hoardings and Kiosks on Vidyasagar Setu, Gariahat flyover, A.J.C. Bose Road flyover (for location not rented out) Hoardings and Kiosks of Lock Gate and Cossipore Flyover.
The respondent No. 3 did not permit the writ petitioners to set up the advertisements. The contract between the respondent No. 3 and the first writ petitioner expired on July 23, 2008.
The contract between the first writ petitioner and the respondent No. 3 subsisted between November 23, 2005 till July 23, 2008. Such contract, if the permission of the respondent No. 3 had been granted, would have allowed the first writ petitioner to set up advertisements at diverse locales. Admittedly, the respondent No. 3 did not permit the writ petitioners to set up the advertisements in terms of the contract. It appears from the record that, by a communication dated February 27, 2007 which is during the currency period of the contract between the first writ petitioner and the respondent No. 3, the Police authorities had called upon the first writ petitioner to send one competent person along with necessary documents relating to advertisements displayed on Vidyasagar Setu. The response to such communication is a letter dated February 28, 2007 issued by the first writ petitioner to the Police authorities. In such letter the writ petitioners claimed not to have displayed any hoarding. It proceeds to say that the Police may take any action if any person displayed any hoarding in the name of the first writ petitioner. The display of hoarding at the locale is not disputed by the writ petitioners. They dispute that they did not set up the hoardings. The writ petitioners have not placed any material on record to show that they had cooperated with the Police authorities with regard to the setting up of advertisements. They did not send any person as requested by the Police authorities. Correspondence had ensued between the writ petitioners and the authorities. In one of such communication being a letter dated April 20, 2011 issued by the Advocate for the writ petitioners a request was for demolishing the hoardings erected in the name of the first writ petitioner. Again the writ petitioners did not deny that the advertisements existed. They claim that they did not erect the advertisements. There is another aspect in the letter dated April 20, 2011 issued on behalf of the writ petitioners. It refers to the visits made by the officials of the Corporation authorities for the purpose of reconciliation of the advertisement tax liability of the first writ petitioner and some payments made thereunder. With regard to the payments noted in the reconciliation statement made over by the representatives of the Corporation authorities to the writ petitioners it is stated in such letter that such arrear tax had been deposited against some bills. The writ petitioners therefore admit in such letter to have paid some of the advertisement tax bills.
The Corporation authorities had by a letter dated July 8, 2011 called upon the writ petitioner to depute a representative for the purpose of reconciling the statement of liability of the first writ petitioner on account of advertisement tax. A reconciliation statement had been made over by the Corporation authorities under cover of the letter dated July 8, 2011 to the Advocate for the writ petitioner. The writ petitioners have not placed any material to show that they had made any attempt to reconcile the statement with the Corporation authorities. This conduct of the writ petitioners allows an inference to be drawn that the writ petitioners have no dispute with regard to the quantum shown as outstanding in the reconciliation statement.
The writ petitioners are liable to pay the advertisement tax, sanction fee and permission fees to the Corporation authorities. The writ petitioners are engaged in the business of putting up advertisements. In the present case, the writ petitioners had a contract with the respondent No. 3 for setting of advertisements at different locales. Although permission of the respondent No. 3 had not been granted, the existence of advertisements at different locales in the home of the writ petitioners stand established from the communication of the police authorities. In response of the communication of the Police authorities dated February 27, 2007 the writ petitioners did not deny the existence of the advertisement at such locales set up. Even in the subsequent correspondence the writ petitioner did not deny the existence of the advertisements in its name. The refusal of the first writ petitioner to depute any representative to assist the Police authorities to identify such person who has set up the advertisement allows an inference to be drawn from such conduct of the writ petitioners that the writ petitioners themselves had set up advertisements. The writ petitioners however claim that they were not the persons who had set up the advertisements. The writ petitioners however did not cooperate with the Police authorities to find out the person responsible for setting up such advertisements. The fact that the advertisements had been set up in the name of the first writ petitioner stand established. The writ petitioner is now attempting to take shelter under the refusal of the respondent No. 3 to grant permission. The refusal of the respondent No. 3 to grant permission to set up advertisement is now being set up by the writ petitioners as a defense to deny their liability to pay advertisement tax, sanction fee and permission fees. The liability to pay advertisement tax, sanction fee and permission fees is not depended upon the grant of permission by the respondent No. 3 to set up advertisements but on the actual setting up of the advertisement by the writ petitioners. In the instant case, I find that the writ petitioners did set up the advertisements at the locale. Therefore, the writ petitioners are liable to pay advertisement tax, sanction fee and permission fees to the Corporation authorities.
Regulation 9(16) of the Calcutta Municipal Corporation Miscellaneous Regulation, 1984 allows the Corporation authorities to levy a penalty on a person who wilfully uses or allows to be used any site for the purpose of advertisement in contravention of the Act and Regulations framed thereunder. Such Regulation could not be read to mean that the person who is guilty with the contravention is not liable to pay advertisement tax. The penalty leviable under Regulation 9(16) will be in addition to the other liability on account of tax or otherwise that the person setting up the advertisement is liable to pay.
On the quantum of the liability, I find that the Corporation authorities have made every endeavour to have the account between the parties reconciled. The writ petitioners were afforded more than sufficient opportunity to have the statement of accounts submitted by the Corporation authorities with them reconciled. They choose not to do so. In such circumstances, it can be safely inferred that the writ petitioners does not have any dispute with regard to the quantum of claim made by the Corporation authorities.
In view of such discussions above, I find no merits in W.P. No. 859 of 2011 and the same is dismissed however without any order as to costs.