DISPLAY OF NAME AND NATURE OF BUSINESS DOES NOT AMOUNT TO ADVERTISEMENT: SUPREME COURT
In precedence of the case Bharti Airtel Vs. State of Madhya Pradesh the High Court of Madhya Pradesh declared the demand notices sent to the appellant for the payment of advertisement tax to be valid. This was challenged in the Hon’ble Supreme Court.
The appellant is a dealer of Hyundai passenger cars in Indore. He had a sign board outside the premise of the showroom displaying the business name and address of the place. Respondent number 2 issued a notice demanding Rs. 2,03,850 as advertisement tax under Section 189-A of the Municipal Act, 1965. The appellant contested that a sign board merely displaying the name of the business does not amount to “advertisement”. The objective behind putting up the sign board was only to inform the public about the business and what it deals in. The appellant filed a writ petition under article 226 of the Constitution of India but the High Court referred to the verdict given in the Bharti Airtel case and dismissed the petition. The appellant received notices to pay advertisement tax not only for the shop located within the jurisdiction of the Indore municipal corporation but also for the one located outside its jurisdiction.
The counsel for appellant contends that the facts in the Bharati Airtel case are not analogous to this case. This case deals with the issue whether a third party or a tax agency collect advertisement tax. Whereas in the present case, the issue is whether displaying the name and nature of the business amounts to advertisement. The counsel for appellant further contends that if tax is levied for the same it would be violative of article 19(1)(A) and 19(1)(G) of the Constitution.
The Indore municipal authority under sec 132(6)(1) of the municipal corporation act contends that it has rightfully demanded the advertisement tax from the appellant. The particular section states that the corporation can levy any tax contingent upon any special or general order taken by the state government, namely, ‘a tax on advertisement other than advertisements published in newspapers’ (Sub-clause (l)).
The court referred to the case of ICICI Bank and Another Vs. Municipal Corporation of Greater Bombay (2005) 6 SCC 404 which held that ‘advertisement’ must have a commercial aspect to it. It must attract the attention of the people in order to persuade them to engage in the activity of buying. Advertisement aims at providing information and is of a good or service. However, only displaying the name of the company does not amount to advertising unless it is a trade mark or trade name.
The hon’ble supreme court states that the sign board entailed the name of the business which itself is indicative of the kind of product the appellant deals with. Solely displaying the name of the enterprise or the business would not amount to advertising unless the enterprise in question in some way persuades the customer to purchase. Display boards and name boards are essential for the purposes of identification. If they are counted as advertisements, it would be impossible for customers to even identify such businesses. The context and circumstances must be taken into account.
In this case, the legislative provisions do not permit the municipal corporation to levy tax on sign boards. The objective of sign board is just to convey information about the kind of products dealt with by a business enterprise. The name of the business enterprise of the appellant shows what car he deals in and nothing more. It does not cause the public to purchase the products.
The Hon’ble court further stated that both the parties had objections to the demands made and they hastily rushed to the High Court under its extra ordinary jurisdiction. However, the court does not support the dismissal of the petition by the High Court. The outcome of the case remains unchanged and the first respondent was asked to review the objections filed by the appellant within eight weeks. In case, they decide against the appellant they cannot enforce the demands for another eight weeks. The appellants have the liberty to challenge any decision given by the Commissioner.
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Judgement Analysis written by- Rashi Hora.
