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TMI Blog2017 (4) TMI 1232X X X X Extracts X X X X X X X X Extracts X X X X ..... lanation added to the definition of the term "taxable service". We are concerned with that part. The term that is defined for the purpose of understanding a taxable service, namely "commercial training or coaching", "commercial training or coaching centre". That is evident from a reading of the Act itself, is for the purpose of the expressions, which are used in the term "taxable service". It is that expression which refers to the commercial training or coaching centre. 3. Therefore, the Board of Excise and Customs ("CBEC" for short) may be making a reference to section 65(26) and (27), but the explanation is not added thereto. 4. The petitioner before us is a Trust registered under the Bombay Public Trust Act, 1950. The petitioner Trust claims that it provides, not necessarily by charging a fee, the necessary training and coaching so as to enable the students to appear for the Indian Administrative Services and other civil services examinations. 5. The petitioner states that in terms of a brochure, copy of which is annexed as Annexure 'B' to the petition, the Trust carries on the activities and more particularly set out in the said brochure. The brochure shows as to how ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bring into focus the amendments and effected to the Act. By this communication, copy of which is at page 118 of the paper book, the petitioner was reminded that as far as the unsigned statements/data submitted, it is not clear whether all amounts pertaining to commercial training or coaching have been considered. The data needs to be submitted only after it has been signed by a responsible person. There has to be a complete reconciliation with the figures reflecting in the balance-sheet. The petitioner was directed to convey the name and designation of a responsible person whose statement can be recorded under section 14 of the Central Excise Act, 1944 as made applicable to service tax under section 83 of Chapter V of the Finance Act, 1994. 6. The petitioner then purported to comply with this reminder by pointing out that the information which has been forwarded is complete and therefore, it was maintained that no further compliance with the requisitions contained in this letter is necessary. 7. Then, the petitioner highlighted the provisions of the Finance Act, 1994 and we would come to them a little later. The petitioner also relied upon Annexure 'H' which is a copy of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that if the predominant intent is not to earn profit, then, the activity can be said to be charitable or philanthropic only. Further, educational institutions do not work or operate with any business motive and to generate a profit. Despite several amendments and introducing the explanation, the fundamental character of such institutes must be considered as that has never been altered. 13. It is urging as above that Mr. Anturkar submits that the writ petition be allowed. Mr. Anturkar relies upon a five Judge Bench judgment in the case of Shri Prithvi Cotton Mills Ltd. and Anr. vs. Broach Borough Municipality and Ors. 1969 (2) SCC 283. 14. On the other hand, Mr. Dwivedi appearing for the respondents would submit that there is no merit in the writ petition and it should be dismissed. Mr. Dwivedi has pointed out that Mr. Anturkar's submissions proceed on an erroneous basis that there is an explanation introduced to the definition. The definition of the term "commercial training or coaching" as appearing in section 65(26) means any training or coaching provided by a commercial training or coaching centre and that is defined in section 65(27) to mean any institute or establishmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2003 contains the definitions. The two definitions with which we are concerned are set out in section 65(26) and 65(27). They read as under:- "65(26) "Commercial training or coaching" means any training or coaching provided by a commercial training or coaching centre 65(27) "commercial training or coaching centre" means any institute or establishment providing commercial training or coaching for imparting skill or knowledge or lessons on any subject or field other than the sports, with or without issuance of a certificate and includes coaching or tutorial classes." 16. Therefore, the legislature refers to a commercial training or coaching. It means any training or coaching provided by a commercial training or coaching centre. The commercial training or coaching centre means any institute or establishment providing commercial training or coaching for imparting skill or knowledge or lessons on any subject or field other than the sports, with or without issuance of a certificate and includes coaching or tutorial classes. However, Mr. Anturkar's submissions overlook the other important provision of this statute and namely the definition of the term "taxable service". That is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see any basis for the argument of Mr.Anturkar. Now, the essential feature or the intent, namely, to make profit or otherwise is wholly irrelevant. Pertinently, Mr. Anturkar does not dispute that the petitioner is coaching the students. A educational coaching is covered by the expression "coaching centre" as defined in section 65(26) and (27). That it is not on commercial basis or predominantly for profit is the only argument canvassed throughout. On some occasions in the past, it was accepted but after the insertion of the explanation even that is unavailable. Now, irrespective of profit motive and so long as such service is rendered for consideration, it falls within the purview of the tax. As held by the Hon'ble Supreme Court in the case of Commercial Tax Officer and Ors. vs. M/s. Bishwanath Jhunjhunwala and Anr. AIR 1997 SC 357 it is the language of the provision which must be taken as decisive. Where the language is unambiguous and clear, full effect has to be given to the amended provision. In paras 12 and 13 of this judgment, the Hon'ble Supreme Court held as under:- "12. What, therefore, we have to seek is the clear meaning of the said Notification. If there be no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k and choose districts, objects, persons, methods and even rates of taxes if it does so reasonably. In this case, the legislature has indeed acted reasonably and taxed the service provided by training and coaching centre and classes. 20. There is substance in the contention of Mr. Dwivedi that Mr.Anturkar's submissions overlook the fact that the Finance Act, 1994 under Chapter V introduced service tax. That is imposed on taxable services. The taxable services themselves are defined. In these circumstances and going by the character and nature of the levy, we do not think that we can accept Mr.Anturkar's submissions. Now, such clarificatory provision can operate with retrospective effect. That has been given retrospective effect in terms of the powers conferred on the legislature is apparent. In these circumstances, this is not an exercise of overruling any binding judgment of a competent court. This is altering the basis or foundation of the law on which the judgment is delivered. In the circumstances, the first contention must fail. 21. Equally, once there is a power to make retrospective amendment and of the above nature, then, one cannot pick one or two words from the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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