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RAJESH JETHMAL SHAH Versus UNION OF INDIA AND 1

2016 (3) TMI 442 - GUJARAT HIGH COURT

Writ petition - Legality, validity and vires of Notification No.24/2007 dated 22.5.2007 and circular No.98/1/2008-ST dated 04.01.2008 - Service tax levied on the “renting of immovable property” as oppose to service tax on a service provided “in relation to renting of immovable property” - Section 65 (90a) and Section 65 (105 (zzz)) of the Finance Act, 1994 as amended by Finance Act, 2007 errorneously interpreted - Held that:- the issue involved is no more res integra and covered by the decision .....

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isposed of - SPECIAL CIVIL APPLICATION NO. 12268, 12269, 12270 of 2009 - Dated:- 4-3-2016 - MR. R.SUBHASH REDDY AND MR. ANANT S. DAVE, JJ. FOR THE PETITONER : MR ARPIT A KAPADIA, ADVOCATE FOR THE RESPONDENT : MR YN RAVANI, ADVOCATE, RULE SERVED ORAL ORDER (PER : HONOURABLE MR.JUSTICE ANANT S. DAVE) 1. By way of these writ petitions filed under Article 226 of the Constitution of India, the petitioners beg to challenge the legality, validity and vires of notification No.24/2007 dated 22.5.2007 and .....

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as oppose to service tax on a service provided in relation to renting of immovable property . The petitioner also seeks an appropriate writ, order or direction from this Hon ble Court not restrain the respondents from charging service tax on the renting of immovable property and also seeks further appropriate writ, order or direction to direct the respondents to refund the service tax paid by the petitioners on the renting of immovable property. 2. Certain facts are not in dispute but Mr.Arpit .....

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as amended by Section 75(5)(h) and Section 76 of the Finance Act, 2010 came to be rejected and even SLP preferred before the Apex Court was also rejected, these petitions are heard together and disposed of by this common judgement. 3. That in earlier writ petition in the case of Cinemax India Limited (supra) basic facts were recorded as under: 2. In most of the petitions, the petitioners are tenants paying rents or license fees or business conducting fees for leasing/licensing of immovable prope .....

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tioner companies also receive rent or license fess or conducting fees or leasing, licensing or use of immovable properties. In these cases also, wherever agreements so provide, the petitioner companies get reimbursed in respect of dues for electricity, water, housekeeping, security etc., which are based on actual consumption and duly supported by bills. 4. The Finance Act, 2007 amended Section 65 of the Finance Act, 1994 and defined renting of immovable property including renting, letting, leasi .....

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2007-S.T., dated 22nd May, 2007, the effective date for levy of service tax on renting and leasing an immovable property was notified as 1st June, 2007. According to the petitioners, the entire object and purpose of the service tax provision was to tax certain categories of services in relation to renting of any immovable property for use in the course or furtherance of business or commerce. Thus, according ot the petitioners, what the Revenue sought to tax was not the renting of immovable prope .....

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lar No.98/1/2008-S.T., dated 4th January, 2008, the Ministry of Finance, Government of India authorised proceeding of recovery of service tax on the same assumption that renting out of immovable property was by itself a service. 4. After relying on various case laws and provisions of Finance Act, this Court in paragraphs 44 and 45 held as under: 44. For the reasons aforesaid, while upholding Section 65(105) (zzzz) of Finance Act, 1994 as amended by Section 75 (5) (h) and Section 76 of the Financ .....

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