TMI Blog2019 (1) TMI 1178X X X X Extracts X X X X X X X X Extracts X X X X ..... that would not constitute service to others. In fact, Gujarat High Court has held the levy itself to be ultra vires of the constitution - various judgments have held that entry fees are subscription fees, mandap charges, charges for common effluent treatment, etc., have been held to be excluded from the purview of taxation. Charges collected from guests and non-members - Held that:- The appellant contended that the services rendered to non-members have come to be charged with effect from 5.1.2011 only. However, it is found that it was held by Jharkhand High Court in the case of Ranchi Club Ltd. that so far as services by club to other than members are chargeable as submitted by the petitioner therein. Therefore, in the instant case also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilities provided to them, their dependents, for the period 16.2.2005 - 28.2.2007; services rendered by them are taxable under Section 65(105) (zzze) read with Section 65(25aa) of the Finance Act, 1994. Commissioner vide OIO No.38/2008 dated 11.9.2008 confirmed duty of ₹ 93,27,626 along with interest while imposing equal penalty under Section 78 and penalties under Sections 76 and 77 of the Finance Act, 1994. 2. Ld. Counsel on behalf of the appellants submits that the principle of mutuality applies to the case and therefore there is no difference between the club and its members who are one and the same and no service can be said to be rendered by the club to its members. Application / enrolment fee is collected from applicants, who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service tax and held that the levy under mandap keeper category cannot apply and a club cannot become a mandap keeper- if club space is allowed to be occupied by the member/his family members/ his guests for any function. The Supreme Court has dismissed the SLP of the Government after condoning the delay, vide report in 2010 (20) STR J.44 (SC). 2.2. Ld. Counsel also submits that the impugned order is wrong in levying service tax even on advance enrolment fee collected from non-members, who are yet to be enrolled. Subscription or amounts collected from its members by a club cannot be taxed as per the decision of the Calcutta High Court in Saturday Club Ltd. vs ACST: 2006 (3) STR 305 (Cal.). Therefore the charges for hire of facilities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt submits that the cover charges are collected as penalty from members not using the facilities as such non-usage deprives other members of the facility and infrastructure. Such amounts cannot be taxed at all. There is no service involved in such case and hence the levy itself fails. Staff welfare collection refers to Diwali bonus collected from members and distributed to staff, which is not towards any service to members. Green fees/course reservation is collected from non-members for usage of golf course and hence not liable under club or association service. Amounts collected towards sale of application forms are not liable as they are in the nature of sale of stationery (goods) and not towards provision of service. The Appellant submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the issue is no longer res integra in view of the decision of Gujarat High Court in the case of Sports Club of Gujarat Ltd. (supra) and that of Jharkhand High Court in the case of Ranchi Club Ltd. (supra) and other decisions of the Tribunal cited above. It has been categorically held that in view of the mutuality of interest and in view of the activities of the club, if the club provides services to its Members that would not constitute service to others. In fact, we find that Gujarat High Court has held the levy itself to be ultra vires of the constitution. We find that various judgments have held that entry fees are subscription fees, mandap charges, charges for common effluent treatment, etc., have been held to be excluded ..... X X X X Extracts X X X X X X X X Extracts X X X X
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