TMI Blog2017 (5) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... i. P.K. Mittal, Advocate- for the appellant Shri. Atul Handa, AR- for the respondent ORDER Per Ashok Jindal The appellant is in appeal against the impugned order demanding service tax under the category of club or association services. 2. The brief facts of the case are that the appellant is registered with the Service Tax Department and paying service tax under the category of club or association services on the amount collected as non-refundable fee and annual subscription fee. The appellant is also providing services to its members namely: Room Tariff, Tambola Income, Swimming pool usage charges, Tennis Charges, Billiard Income, Squash Charges, Library Charges, Guest Fee, Karate Income, Fax/Photocopy Charges and Issua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt of Gujarat held that the provisions of section 65 (105) (zzze) read with section 65 (25a) are ultra-virus, therefore, the impugned order is to be set aside. 4. Heard both the sides and considered the submissions. 5. We find that in the case of DLF Golf Resorts Limited (Supra) wherein the facts of the case are as under: 2. The assessee M/s DLF Golf Resorts Limited, is holder of service tax registration for providing services of Mandap Keeper, Health Club Fitness Centre, BAS, Membership of Clubs, maintenance or Repair Services, Manpower Recruitment Services, Renting of immovable property and sponsorship services. On scrutiny of records, it was observed by the department that during the period 16.06.2005 to 31.03.2005 though a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... members is taxable is now settled by judgments of various High Courts and the Tribunal. In Ranchi Club Ltd. Vs. CCE, 2012 (26) STR 401 (Jhar.) the Hon ble High Court observed as under:- 18. However, learned counsel for the petitioner submits that sale and service are different. It is true that sale and service are two different and distinct transactions. The sale entails transfer of property whereas in service, there is no transfer of property. However, the basic feature common in both transaction requires existence of the two parties; in the matter of sale, the seller and buyer, and in the matter of service, service provider and service receiver. Since the issue whether there are two person or two legal entity in the activities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of the principle of mutuality, services provided by the appellants to their respective members would not fall within the ambit of the taxable club or association service nor the consideration whether by way of subscription/ fee or otherwise received therefore be exigible to service tax. In view of the decision of the Gujarat High Court in Sports Club of Gujarat Limited, as the relevant provisions (namely section 62 (25a), Section 65 (105)(zzze) and Section 66 of the Act), to the extent these provisions purport to levy service tax in respect of services provided by a club of association to its members is declared ultra vires, we hold that there are no operative legislative provisions of the Act legitimizing the levy and collection of s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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