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2023 (2) TMI 833 - HC - Service TaxRenting of immovable property - Airport/Civil Enclave - Constitutional Validity of levy, imposition, demand or collection of service tax from the petitioner by the respondents herein for the payment of license/rental fee paid by the petitioner to the fifth respondent - seeking Writ of Mandamus (command issued by the court to a public official asking him/her to perform his/her official duties) to forbear the respondents, their men, agents, sub-ordinates or anyone claiming under them from in any manner imposing, levying, demanding or collecting service tax from the petitioner towards the rent/license fee paid by the petitioner to the fifth respondent other than by authority of law. The specific case of the petitioner is that the fifth respondent has not provided any taxable service to the petitioner during the period between 10.09.2004 and 01.06.2007 and therefore, the attempt of the fourth, fifth and sixth respondents to fasten the service tax liability on the petitioner by passing on the incidence of tax on the petitioner under Section 65(105)(zzm) of the Finance Act, 1994 (Chapter V - Service Tax) was unsustainable and contrary to law. HELD THAT:- Service of renting of immovable property is a separate specie of service. It was brought within the purview of service tax separately vide Section 65(105)(zzzz) with effect from 01.06.2007. Ipso facto, it would not mean that any service tax which was payable by the fourth respondent for the service provided by it in any Airport or a Civil Enclave to any person between 10.09.2004 and 31.06.2007 was not taxable - Merely because the service of renting of immovable property was introduced as a separate levy with effect from 01.07.2007 ipso facto would not mean that service provided by the Airport Authority of India was not liable to tax w.e.f. 10.09.2004. By this Writ Petition, the petitioner has attempted to pre-empt the fourth, fifth and sixth respondents from passing on the incidence of service tax which was either borne by them or was proposed to be borne by them towards renting of space to them within the Airport or a Civil Enclave. Whether the fourth respondent is/was liable to tax or not is to be determined by the Authorities enforcing the provisions of the Finance Act, 1994. The present Writ Petition to scuttle any assessment and adjudication proceedings and proposal to pass on incidence of service tax on the petitioner by the Airport Authority of India namely, the fourth respondent cannot be countenanced - It is preemptory move in an anticipation of steps that would have been taken by the Airport Authority of India by passing on the incidence of service tax in terms of Section 65(105)(zzm) of the Finance Act, 1994 (Chapter V – Service Tax) as it stood with effect from 10.09.2004. Considering the fact that the issue is pending before the Hon’ble Supreme in S.L.P. filed against the above decision of Delhi Tribunal in Airport Authority of India Vs. Commissioner of Service Tax, Delhi, [2015 (1) TMI 1049 - CESTAT NEW DELHI], we refrain to give any final view on the subject - In case the above decision of Delhi Tribunal in Airport Authority of India Vs. Commissioner of Service Tax, Delhi, is upheld by the Hon’ble Supreme Court, the fourth respondent Airport Authority of India can indeed pass on the incidence of the tax on the petitioner - In case the decision is reversed, it is open for the petitioner to either file a refund claim under Section 11B of the Central Excise Act, 1944 as made applicable to the provisions of the Finance Act, 1994 in terms of Section 83 of the Finance Act, 1994, in accordance with law and law settled by the Hon’ble Supreme Court if the incidence of service tax was passed on it or in the alternative defend such proceedings that may be initiated to recover the amount of service tax from it. It is deemed fit to direct the respondents to maintain the status quo as on date pending further decision of the Hon’ble Supreme Court in the above S.L.P. filed by the Airport Authority of India - petition disposed off.
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