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TMI Blog2011 (3) TMI 773X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1994 as amended by Finance Act, 2007, 2008 & 2010 as null and void and ultra vires the Constitution of India and/or Section 65 of the Finance Act and/or be pleased to strike down the said provision as illegal, arbitrary and violative of Article-14, 246 & 265 of the Constitution of India. (B) issuing a writ/order/direction in the nature of certiorari or any other writ by setting aside Section 75(5)(h) and Section 76 of the Finance Act, 2010. (C) declaring Notification No. 24/2007, dated 22-5-2007 (Annexure-4), Circular No. 98/1/2008-S.T., dated 4-1-2008 (Annexure-5) as revived by Finance Act, 2010 and the Circular D.O.F. No. 334/1/2010-TRU, dated 26-2-2010 (Annexure-6) as illegal null and void and ultra vires to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r dated 4-1-2008 were held to be incorrect and consequently, ultra vires the said Act and set aside. Learned counsel for the petitioner placed great stress on various arguments raised before the Hon'ble High Court of Delhi and in particular, in Paragraphs 1, 2, 5, 6 as well as the conclusions arrived at therein in Paragraphs 33, 34, 35 & 36 and submitted that the present challenge to the amendment made to Section 65(105)(zzzz) as amended by the Finance Act, 2010 does not remedy the constitutional infirmity found by the Hon'ble Delhi High Court in the aforesaid judgment. 3. The essential contention of Mr. Kanungo on behalf of the petitioner was that a distinction has to be made between "property based service" and "performance based s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been amended by the Finance Act, 2010 whereby "renting of immovable property for use in the course or furtherance of business of commerce" has been amended and that "taxable service" would include "renting of immovable property for use in the course or furtherance of business of commerce". This amendment by the Finance Act, 2010 was passed after the judgment of the Delhi High Court and obviously not the subject matter of challenge before the Hon'ble Delhi High Court. Apart from the aforesaid fact, learned counsel for the revenue also placed reliance on a judgment of the Hon'ble High Court of Punjab and Haryana in the case of M/s. Shubh Timb Steels Ltd. v. Union of India and Another [2010 (20) S.T.R. 737 (P & H)] wherein challenge to the sc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow. These points become necessary to be dealt with in connection with the relevant statutory provisions which are noted hereunder in a tabular form : Prior to Finance Act, 2010 Post amendment by Finance Act, 2010 "Section 65(90a) "renting of immovable property" includes renting, letting, leasing, licensing or other similar arrangements of immovable property for use in the course or furtherance of business or commercial but does not include :- "Section 65(90a) "renting of immovable property" includes renting, letting, leasing, licensing or other similar arrangements of immovable property for use in the course or furtherance of business or commercial but does not include :- (i) renting of immovable property by a religious body or to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and facilities relating thereto; (iii) the common or shared areas and facilities relating thereto; and and (iv) in case of a building located in a complex or an industrial estate, (iv) in case of a building located in a complex or an industrial estate, xx xx xx xx xx xx 7. On a compassion (sic) (comparison) of the relevant statutes as noted hereinabove, it is clear that, Section 65(90-a) of the Finance Act, "renting of immovable property" has not undergone any amendment by the Finance Act of 2010. It is only Section 66(105) "taxable service" which has undergone ame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Others, (2004) 5 SCC 632 = 2006 (3) S.T.R. 260 (S.C.) = 2004 (167) E.L.T. 3 (S.C.) has clearly held that, the services rendered by 'Mandap' can be to termed as "property based services". This judgment has been affirmed by a latter judgment of the Hon'ble Supreme Court presided over by Justice S.H. Kapadia (as His Lordship the then was) in the case of All India Federation of Tax Practitioners and Others v. Union of India and Others, (2007) 7 SCC 527 = 2007 (7) S.T.R. 625 (S.C.). 10. In the present case, we are clearly of the view that the nature of the transaction made by the petitioner with its tenant clearly amounts to renting of an immovable property for the purpose of business or commerce and is, therefore, clearly covered by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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