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2022 (7) TMI 524 - SC - Service TaxNon-payment of Service Tax - Consulting Engineer Service - neither the respondent was registered under the Service Tax Act nor it paid the service tax on receipt of payments for such services - scope of definition of “consulting engineer” under Section 65(31) of the Finance Act, 1994, specifically as to whether a “body corporate” is covered within its sweep prior to the amendment in 2005 - Demand of tax, interest and penalty - HELD THAT:- Under the Finance Act, 1994, the definition of “consulting engineer” in Section 65(31) covers services provided to a client by a professionally qualified engineer or an engineering firm consisting of professionally qualified engineers. The taxable attribute is that the services must be rendered in a professional capacity - From the relevant provisions under the Finance Act, 1994, referred to hereinabove, “taxable service” means any service provided or to be provided. Under the relevant provisions of Finance Act, 1994, at many places, the word used is “person”. For example, as per Section 68, every “person” providing taxable service to any “person” shall pay service tax. Section 69 provides that every “person” liable to pay the service tax may make an application for registration. In Section 70 also, the words used are “every person liable to pay the service tax.” In many places under the Finance Act, 1994, the Parliament/Legislature has used the word “person” (Sections 68, 69 and 70). At this stage, Section 3(42) of the General Clauses Act, 1897 is also required to be referred to, considered and applied. The word “person” includes any company or association or body of individuals, whether incorporated or not. Therefore, there is no logic and/or reason to exclude a” body corporate” from the definition of “consulting engineer” and to exclude the services of a “consulting engineer” rendered by a “body corporate” to exclude and/or exempt from the service tax net. Such an interpretation would lead to anomaly and absurdity. As observed hereinabove, it will create two different classes providing the same services which could not be the intention of the Parliament/Legislature. The view taken by the High Court of Karnataka in the case of TCS [2004 (7) TMI 664 - KARNATAKA HIGH COURT] and the Calcutta High Court in the case of M.N. Dastur [2005 (2) TMI 11 - HIGH COURT (CALCUTTA)], taking the view that a “firm” and a” company” can be said to be a “consulting engineer” as defined under the Finance Act, 1994 and liable to pay the service tax as a service provider, is agreed upon - thus, under the Finance Act, 1994, in the definition of “consulting engineer”, a “body corporate” is included and/or to be read into so as to bring a “body corporate” being a service provider providing the consultancy engineering services within the service tax net, as such, it is not necessary to consider whether the subsequent amendment amending the definition of “consulting engineer” by way of 2005 amendment adding a “body corporate” within the definition of “consulting engineer” would be retrospective and/or whether it can be said to be a clarificatory in nature or not and the said issue would become academic now. It is held that the respondent, being a service provider providing consultancy engineering services, was/is liable to pay the service tax for such services being “consulting engineer” within the definition of Section 65(31) of the Finance Act, 1994 and therefore and thereby liable to pay the service tax under Section 66 r/w Section 68 of the Finance Act, 1994 - the matter is remanded to the CESTAT to examine and decide the appeal on other grounds, if any, raised in the Appeal Memo before it afresh in accordance with law and on its own merits and in light of the observations made hereinabove and the law laid down by this Court in the present judgment and order. Appeal disposed off.
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