TMI Blog2015 (12) TMI 1448X X X X Extracts X X X X X X X X Extracts X X X X ..... law on the issue whether hiring of vehicles would fall under the category of Rent-a-cab scheme operator" or otherwise - Tribunal did take a view against the assessee but the Tribunal's judgement [2013 (7) TMI 816 - CESTAT NEW DELHI] was delivered on 02.05.2013 while the judgement of the Hon'ble High Court of Uttrakhand was delivered on 06.08.2014. Further, we notice that the Hon'ble High Court of Uttarakhand in the said judgement has distinguished the judgement of the Hon'ble Madras High Court in the case of Secy. Federn of Bus-operators Assn. of Tamil Nadu [2001 (4) TMI 7 - MADRAS HIGH COURT]as well as the judgement of the Hon'ble High Court of Delhi in the case of Kuldip Singh Gill [2005 (5) TMI 353 - CESTAT, NEW DELHI]. This judgeme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent-a-Cab scheme operator is liable for service tax under the category of Rent-a-Cab Service or otherwise. 5. It is the case of the assessee that the appellant had under a contract with Bharat Sanchar Nigam Ltd. (BSNL) for supply of the vehicles within the jurisdiction of Amravati District and they were required to supply the vehicles on hiring basis. It is the submission of the learned Counsel that the issue is no more res integra as the Hon'ble High Court of Uttrakhand in the case of CC CE v. Sachin Malhotra and Ors. - 2014-TIOL-2039-HC-UKHAND-ST has held that this kind of hiring of vehicles would not fall under service tax liability. He would submit that the said judgement was followed by the Hon'ble High Court of Uttarak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t-a-Cab scheme operator, in paragraphs 16, 17 and 18 held as under: 16. What is sought to be taxed under the provisions, which we have adverted to in this judgment, is service, which is rendered in relation to renting of cabs. Under Section 65(91) of the Service Tax Act, rent-a-cab scheme operator has been defined as a person, who is engaged in the renting of cabs. The words in relation to , undoubtedly, do have the effect of expanding the scope of taxation. With this proposition, we can have no quarrel. But, this cannot detract from our enquiring into as to what is the transaction, which is actually brought to tax. We are constrained to pose this question and answer this question as what is sought to be taxed is the service in rela ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing grant, renewal and revocation of such licence; (b) form of application and form of licences and the particulars to be contained therein; (c) fee to be paid with the application for such licences; (d) the authorities to which the application shall be made; (e) condition subject to which such licences may be granted, renewed or revoked; (f) appeals against orders of refusal to grant or renew such licences and appeals against orders revoking such licences; (g) conditions subject to which motorcabs may be rented; (h) maintenance of records and inspection of such records; (i) such other matters as may be necessary to carry out the purpose of this section. 17. In terms of Section 75, a scheme has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the vehicle, who may or may not be the driver, will offer his service while retaining the control and possession of the vehicle with himself. The customer is merely enabled to make use of the vehicle by travelling in the vehicle. In the case of a passenger, he is expected to pay the metered charges, which is usually collected on the basis of the number of kilometers travelled. These are all matters, which are regulated by the Government. Unlike the said scenario, in the case of a rent-a-cab scheme, as is clear from the very fundamental principle underlying the scheme, it is to give the hirer the freedom to use the vehicle as he pleases, which, undoubtedly, implies that he must have possession and control over the vehicle. This is the funda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provide the service to the prospective customer. We cannot accept the argument of the learned counsel for the appellant that the Court must ignore the provisions of Section 75 of the Motor Vehicles Act. We are of the view that, when the lawgiver introduced this new source of taxation, it must be treated as having been aware of the distinct concept of renting a cab for which there is provision in the Central Legislation, namely, Section 75 of the Motor Vehicles Act and also a scheme stood framed as early as in 1989. We are, therefore, of the view that, unless there is control, which is passed to the hirer under the rent-a-cab scheme, there cannot be a taxable transaction under Section 65(105)(o), read with Section 65(91) of the Service Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
