TMI Blog2018 (10) TMI 901X X X X Extracts X X X X X X X X Extracts X X X X ..... be existence of two parties i.e. the service provider and the service receiver. As far as the relationship between an incorporated society or club and its members is concerned, it is an undisputed fact that such incorporated association is a distinct legal entity. However, since the association was formed or constituted and existed for the exclusive purpose of catering/meeting to the requirements of its members, as per the laid down policy in the bye law, it cannot be said that there is involvement of two persons, one to be termed as the service provider and the other as the service receiver. Thus, the incorporated association and its member being one and the same, the activities undertaken or the services provided by the former will not be considered as a service, exigible to service tax under the principle of mutuality. Status of the appellant, whether an incorporated body or otherwise - Held that:- Upon registration of the society, the same is legally accepted as a body corporate and thereafter, its function and operation are strictly guided as per the laid down bye laws, provided for the purpose. In this case, it is no doubt, a fact that the appellant is a co-operative so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceiver and since the person contributing and benefiting are the same, as per the principles of mutuality, the activities should not be subjected to levy of service tax. It was further contended that the appellant being a body corporate, its case will not be governed by explanation 3(a) appended to Section 65B(44) of the Finance Act, 1944 (effective from 01.07.2012). 1.3 The department initiated show cause proceedings against the appellant, seeking for rejection of the refund applications. The matter was adjudicated against the appellant, in rejecting the refund applications. The appellant had preferred separate appeals before the ld. Commissioner (Appeals), Mumbai against different adjudication orders passed by the original authority. All the appeals filed by the appellant were disposed of by the lower appellate authority vide the common impugned order dated 27.12.2017. The appeals were rejected inter alia , on the ground that in the light of explanation 3(a) to Section 65B(44) ibid, the appellant and its members are to be treated as distinct entities and therefore, the appellant has correctly paid service tax. 1.4 Feeling aggrieved with the impugned order, the appellant has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) are extracted herein below :- Period prior to 01.07.2012 Section 65 (25aa) : club or association means any person or body of persons providing services, facilities or advantages, primarily to its members, for a subscription or any other amount, but does not include any body established or constituted by or under any law for the time being in force. Section 65(105)(zzze) : taxable service means any service provided or to be provided to its members or any other person by any club or association in relation to provisions of services, facilities or advantages for a subscription or any other amount. Explanation - For the purposes of this section, taxable service includes any taxable service provided or to be provided by any unincorporated association or body of persons to a member thereof, for cash, deferred payment or any other valuable consideration. Period after 01.07.2012 (Negative list) Section 65B(44) : service means any activity carried out by a person for another for consideration, and includes a declared service. Explanation 3(a) : For the purposes of this chapter, an unincorporated association or a body of persons, as the case may be, and a membe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. (supra) has concurred with the earlier referred decisions of the Tribunal. 9. Coming to the issue of ascertaining the status of the appellant, whether an incorporated body or otherwise, for the purpose of consideration of applicability of explanation 3(a) appended to Section 65B of the Act, I have examined the relevant provisions of the Act of 1960 and the model bye laws provided therein. Under Section 36 in the Act of 1960, it has been provided that the registration of a society shall render it a body corporate by the name under which it is registered, with perpetual succession and a common seal, and with power to ....................................... and to do such other things as are necessary for the purpose for which it is constituted . Further, clause 67 of Maharashtra Co-operative Housing Society Bye Laws, formulated under the Act of 1960 earmarked the charges, in the form of contribution to be collected from the members of the society, which relates inter alia, for payment of property taxes, water charges, common electricity charges, contribution to repair and maintenance fund, contribution to sinking fund, service charges etc. Clause 69 of the said Bye law al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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