TMI Blog2020 (5) TMI 224X X X X Extracts X X X X X X X X Extracts X X X X ..... thoritative pronouncement of Hon ble Apex Court in Calcutta Club Ltd. holding that the companies and co-operative societies which are registered under the respective Acts can be said to be constituted under those Acts and the clubs or associations incorporated prior to 1.7.2012 were not included in the service tax net, necessarily, we have to answer the substantial questionsof law against the revenue and in favour of the respondent-assessee and accordingly, it is ordered - Appeals are dismissed by answering the substantial questions of law in favour of respondent-assessee and against appellant-revenue. - C.E.A.NO.45/2015 C/W C.E.A.NO.46/2015 - - - Dated:- 4-3-2020 - Hon'ble Mr. Justice Aravind Kumar And The Hon ble Mr. Justice Heman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of complex and roads under the category construction of complex services and works contract service under the Finance Act, 1994. On the ground that respondent was rendering taxable service under the category of Club or Association Service as definedunder Section 65(105)(zzze) of the Finance Act, 1994 and liable for payment of service tax, which is said to have come to limelight during the course of audit and observations having been made that agreements entered into by the respondent with their customers for the purpose of residential apartments and certain amounts are collected as non-refundable deposits towards Club House and Swimming Pool , show cause notices (for short SCN) dated 18.4.2012 and 20.11.2012 came to be issued to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inabove being answered in favour of the revenue. 6. Per-contra, Sri.Ravi Raghavan, learned counsel for respondent would support the order passed by the Tribunal by placing reliance on the judgment of the Apex Court in the case of STATE OF WEST BENGAL VS. CALCUTTA CLUB LIMITED in Civil Appeal No.4184/2009 and other connected matters reported in 2019 SCC ONLINE SC 1291. Hence, he prays for answering the substantial questions of law in favour of the assessee i.e., respondent and against the revenue. 7. Having heard the learned Advocates appearing for the parties and on perusal of the entire case papers as well as the judgment rendered by the Apex Court in the case of STATE OF WEST BENGAL VS. CALCUTTA CLUB LIMITED, we have no hesitation t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ord constituted does not necessarily mean created or set up , though it may mean that also. It also includes the idea of clothing the agreement in a legal form. In the Oxford English Dictionary, Vol. II, at pp. 875 876, the word constitute is said to mean, inter alia, to set up, establish, found (an institution, etc.) and also to give legal or official form or shape to (an assembly, etc.) . Thus the word in its wider significance, would include both, the idea of creating or establishing, and the idea of giving a legal form to, a partnership. The Bench of the Calcutta High Court in the case of R.C. Mitter and Sons v. CIT [(1955) 28 ITR 698, 704, 705] under examination now, was not, therefore, right in restricting the word con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt holding that the companies and co-operative societies which are registered under the respective Acts can be said to be constituted under those Acts and the clubs or associations incorporated prior to 1.7.2012 were not included in the service tax net, necessarily, we have to answer the substantial questionsof law against the revenue and in favour of the respondent-assessee and accordingly, it is ordered. Hence, the following: ORDER (i)Appeals are dismissed by answering the substantial questions of law in favour of respondent-assessee and against appellant-revenue. (ii)Final orders passed in 20039/2015 and 20303/2015 by the CESTAT dated 6.1.2015 and 11.2.2015 in the respective appeals are hereby affirmed. (iii) No order as to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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