Judgment :- 1. Since the issue involved in both the writ petitions are one and the same, they are disposed of by a common order. 2. The petitioner has filed these writ petitions seeking to issue a Writ of Certiorari calling for the records of the respondent in RC No.204/99 (1998-99) and (1999-2000) respectively and quash the impugned order dated 09.08.2004 as the same has been passed ignoring the orders passed by the Tamil Nadu Sales Tax Appellate Tribunal (Additional Bench) Chennai in the petitioner's case for the earlier Assessment Years 1992-93 to 1997-98 in S.T.A.Nos.136/2001.137/2001.138/2001.150/2001.151/2001 and 1555/2000 and the orders passed in the review applications dated 27.02.2004 and also against the law laid down by the Division Bench of this Court in the decision reported in 28 STC 483. The brief facts of the cases are as under:- The relevant assessment years are 1998-99 and 1999-2000 under the Tamil Nadu General Sales Tax Act. The petitioner is engaged in displaying the advertisement of their clients on the hoardings. The hoardings in which the petitioner display the advertisements of their customers are erected and owned by the petitioner themselves. The customers are only interested in having their advertisements displayed in the manner they wanted. The petitioner collects advertisement charges from the customers. There is no transfer of hoardings to any customer or the customers take physical possession of the hoardings. The hoardings are maintained by the petitioner and also assume the character of an immovable property permanently fixed to earth. They reported a total and taxable turnover of Rs.4,06,30,027/-and Nil for the Assessment Year 1998-99 and the total and taxable turnover of Rs.2,01,74,678/- and Nil respectively for the Assessment Year 1999-2000 under the TNGST Act. They have not registered themselves under the TNGST Act, 1959. The Assessing Officer called for and checked the accounts and completed the assessment holding that the assessee is liable to pay tax under Section 3-A of the TNGST Act in respect of rent for leasing of hoardings. Aggrieved by the same, the petitioner filed the present writ petitions. 3. They have not registered themselves under the TNGST Act, 1959. The Assessing Officer called for and checked the accounts and completed the assessment holding that the assessee is liable to pay tax under Section 3-A of the TNGST Act in respect of rent for leasing of hoardings. Aggrieved by the same, the petitioner filed the present writ petitions. 3. Learned counsel appearing for the petitioner vehemently contended that in respect of the similar issue of levy of tax under Section 3-A of the Act, the assessee filed appeals for the Assessment years 1992-93 to 1997-98 before the Appellate Assistant Commissioner (CT) III and those appeals were allowed in favour of the assessee and thus succeeded before the first Appellate authority. Further, on the appeals filed by the Revenue before the Sales Tax Appellate Tribunal, the Tribunal also has decided in favour of the assessee. The Revenue has not filed any appeal against the Tribunal order and also in respect of subsequent Assessment Years, the Revenue accepted the contentions of the assessee. However, for the two assessment years i.e.1998-99 and 1999-2000, the respondent has passed the Assessment Orders confirming the proposal of levying tax under Section 3-A of the TNGST Act. The learned counsel for the petitioner further brought to the notice of this Court the decision of the Division Bench of this Court in the case of State of Tamil Nadu, Rep. by the Deputy Commissioner (CT), Chennai (Central) Division Vs. Jayalakshmi Enterprises reported in2011-12 (17) TNCTJ 92 (TC.(Revision) No.430 of 2006, dated 07.07.2011, wherein, this Court after considering the other assessee's case in a similar issue, taken a view in favour of the assessee and held that such transaction could not be bring under the provisions of Section 3 A of the Act. Learned counsel further submits that in view of the fact that the assessee's case in respect of earlier assessment years were accepted by the Revenue and in view of the judgment of the Division Bench of this Court, the assessment order passed by the respondent is not in accordance with law and the same should be quashed. 4. Learned Government Advocate (Taxes) submits that as against the impugned assessment order for the years, 1998-99 and 1999-2000, the petitioner is having the right of filing appeal before the Appellate Authority. 4. Learned Government Advocate (Taxes) submits that as against the impugned assessment order for the years, 1998-99 and 1999-2000, the petitioner is having the right of filing appeal before the Appellate Authority. However, the petitioner instead of exhausting such remedy available provided under the law, filed these writ petitions and therefore, these writ petitions are not maintainable. He further argued that the respondents has considered all the facts and circumstances of the case and passed the impugned order and the same is in accordance with law. 5. Heard the learned counsel on either side and perused the documents available on record. There is no dispute that the Revenue had accepted the order of the Appellate Tribunal in respect of the same issue for the earlier Assessment Years viz., 1998-99 to 1997-98 in the case of assessee. The said Tribunal orders also reached finality and also for the subsequent period, the Revenue had accepted the contentions of the assessee and not levied tax under Section 3-A of the TNGST Act. Further, it is pertinent to note that this Court, in the case of State of Tamil Nadu, Rep. by the Deputy Commissioner (CT), Chennai (Central) Division Vs. Jayalakshmi Enterprises (cited supra) considered the similar matter and allowed the case in favour of the assessee. The relevant portion of the order in paragraphs 6, 7 and 8 reads as under: "6. It is seen from the order of the Tribunal that it listed out the various aspect of the transactions of the assessee's business in the nature of putting up advertisement boards, which are as follows: i. The hoardings are erected in the earth on concrete foundations. They cannot be removed without causing damages to hoardings. ii. Transferee is not physically possessing the hoardings. iii. Entire maintenance and upkeep of hoardings is done by respondent only iv. The job of painting the designs or display matter is alone done by the respondent. v. The respondent is also responsible for damages for fall of hoardings during heavy rain storm or any other causes and respondent has to carry out necessary periodical repair work for keeping them in good conditions. Vi. Entire license charge to Chennai Corporation and insurance were paid by the respondent only. 7. v. The respondent is also responsible for damages for fall of hoardings during heavy rain storm or any other causes and respondent has to carry out necessary periodical repair work for keeping them in good conditions. Vi. Entire license charge to Chennai Corporation and insurance were paid by the respondent only. 7. In the context of the above factual aspect that the hoardings were erected on the earth on concrete foundation that cannot be removed without causing damage to the hoardings, the Tribunal granted relief to the assessee. Thus the factual findings herein as to how the hoardings are used as part of the immovable property, certainly goes against the Revenue's plea herein. 8. In the decision reported in 113 STC 403 UPASANA FINANCE LIMITED V. STATE OF TAMIL NADU, the Tamil Nadu Taxation Special Tribunal considered the vires of Section 3 A of the Act. While upholding the provisions of Section 3 A of the Act, the Tribunal pointed out that in the case of transfer of right to use, the essence of the transfer is the passage of control over the economic benefit of the property. In other words, there must be a transfer or effective control over the goods that the other party is able to exploit economic benefit over the same. Since the transfer of right to use the goods is a deemed sale, the rent paid for the use the goods is a deemed sale, the rent paid for the use of the goods can certainly be the basis for the levy of tax. In the circumstances, whether there was any goods in respect of which, there was a transfer of right to use, hence has to be seen before fastening any liability. In order to attract the provisions of Sales Tax enactments, on the transfer of right to use the goods, there should be delivery of goods and freedom to use such goods. The Special Tribunal further pointed out that ultimately the term of the contract between the assessee on one hand and the customers on the other hand would establish whether there was any transfer of right to use any goods to attract the Section 3 A of the Act. In that context, the Tribunal held that each case has to depend upon the facts. Ultimately, it is the Officer who has to go into the issue. In that context, the Tribunal held that each case has to depend upon the facts. Ultimately, it is the Officer who has to go into the issue. Consequently, the Special Tribunal directed all the cases to be decided in terms of the materials available. The Tribunal further pointed out to the decision reported in 89 STC 1 SELVEL ADVERTISING PRIVATE LIMITED V. COMMERCIAL TAX OFFICER, ALIPORE CHARGE, the case relating to the erection of hoardings wherein the West Bengal Special Taxation Tribunal rejected the arguments that it was an immovable property. Further in that case it was found that there was nothing to show that possession and control of the hoardings and structure remained with the assessee during the period of contract. Thus, the decision referred to above laid down as a matter of principle of law that only goods can be a subject matter of sale as well as of a deemed sale. In order to bring the transaction under the provisions of Section 3A relating to transfer of right to use the goods, the transferee must have control over economic benefit of the property, in which event, the possession also has to be with the transferee. In the absence of any elements, viz., the goods, the transfer of right to use the goods, the said transaction could not be bring under the provisions of Section 3A of the Act." There is no dispute that the facts involved in the above cited case and the present cases are same. Under these circumstances, taking into account that the Revenue had accepted the assessee's case for the earlier Assessment Years and for the subsequent period and also in view of the judgment of the Division Bench of this Court cited above, the impugned assessment order passed by the Assessing Officer in respect of levy of tax under Section 3-A of the TNGST Act is not sustainable and hence, the same is set aside holding that the transactions involved in the petitioner's case would not come under the provisions of Section 3-A of the Act. 6. In the light of the above finding, these writ petitions are allowed. Consequently, connected miscellaneous petitions are closed.