TMI Blog2011 (3) TMI 773X X X X Extracts X X X X X X X X Extracts X X X X ..... certainly possesses the necessary legislative competence to declare the said amendment to be retrospective in operation and, therefore, do not find any error or lack of competence in such legislation. - 23155 of 2010 - - - Dated:- 17-3-2011 - V. Gopala Gowda, C.J. and Indrajit Mahanty, J. REPRESENTED BY : S/Shri Milan Kanungo, J.K. Mohanty and S.K. Mishra, for the Petitioner. Shri P.K. Ray, Sr. Standing Counsel, for the Respondent. [Judgment per : Indrajit Mahanty, J.]. This writ application has been filed by the petitioner company M/s. Utkal Builders Limited with the following prayer : (A) declaring the impugned provision viz. Section 65(90a) read with Section 65(105)(zzzz) of the Finance Act, 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) declar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was that a distinction has to be made between property based service and performance based service as well. There can be no doubt that any service connected with renting of immovable property would fall within the ambit of Section 65(105)(zzzz) of the Finance Act and is assessable to the service tax. Yet, the question whether renting of such immovable property by itself constitute a taxable service or not, especially when there has been no value addition provided by the service provider, i.e. landlord or lessor is raised. It is claimed by the petitioner that insofar as renting of immovable property for use in the course or furtherance of business of commerce is concerned, there is no distinctable value addition necessary and consequently, renting of immovable property for use in the course or furtherance of business of commerce by itself does not entail any value addition and, therefore, cannot be recorded as service. 4. Mr. P.K. Ray, learned counsel for the Revenue, on the other hand, contends that the very judgment of the Hon ble Delhi High Court, relied upon by the learned counsel for the petitioner, has been challenged by the revenue in Special Leave to Appeal C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment itself. 6. In the light of the aforesaid submissions and in view of the adjudication made by different High Courts on related subject, we are of the considered view that the scope and ambit of the present challenge is extremely narrow. 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 religious body; (i) renting of immovable property by a religio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove, 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 amendment to include as taxable service any service provided to any other person by renting of immovable property or any movable property or any other service relating to such renting for use in course or furtherance of business or commerce. 8. On reading of the judgment of the Delhi High Court in the case of Home Solution Retail India Ltd. (supra) , it is clear therefrom that the Hon ble Delhi High Court has not taken into consideration the scope and ambit of Section 65 (90-a) of the Finance Act relating to renting of immovable property . We are of the considered view that since renting of immovable property itself is clearly covered by Section 65(90-a) of the Act which include renting, lending, leasing, licencing or other similar arrangements of immovable property for use in the course or furtherance of business or commerce. Therefore, it appears that though Section 65(90-a) has been mentioned to in the aforesaid judgment, yet its impact and the scope and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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