TMI Blog2019 (12) TMI 944X X X X Extracts X X X X X X X X Extracts X X X X ..... t ORDER PER: P. ANJANI KUMAR The appellant is an organization of persons engaged in providing common facilities. DGCEI issued a show-cause notice dated 04/01/2008 demanding an amount of ₹ 1,33,37,884/- being service tax payable for the period 1.6.2005 to 31.3.2007 on the Club or Association Membership Services rendered by them. Learned Commissioner of Service Tax, Bangalore vide order No.22/2009 dated 18.3.2009 confirmed the demand and imposed penalty under Section 76, 77 and 78 of Finance Act, 1994. The corrigendum dated 3.6.2009 was also issued. Learned counsel submits that this Bench in the case of M/s. Cosmopolitan Club (R) vide final order No.20316/2015 dated 11.2.2015 have held the issue in favour of the appellant by following the ratio of Hon ble High Court of Jharkhand in the case of Ranchi Club Ltd.: 2012 (26) STR 401 (Jhar.). Learned counsel for the appellant also submits that the issue is no longer res integra as the Hon ble Supreme Court in the case of Chief Commissioner of Central Excise and Service Tax and Others vs. M/s. Ranchi Club Limited in Civil Appeal No.7497 of 2012 has settled the issue in f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (iii) any person or body of person engaged in any activity having objectives which are in the nature of public service and are of a charitable, religious or political nature, or (iv) any person or body of persons associated with press or media. 61. Likewise, in Section 65(105)(zzze), the expression or any other person was added after the expression to its members , thus making it clear that the tax net had now been widened so as to include non-members of clubs or associations as well. 62. Under Section 66, it was stated that there shall be levied the tax (referred to as the service tax ) at the rate of 12% of the value of taxable services referred to in sub-clauses (zzze) of clause (105) of section 65, and collected in such manner as may be prescribed. 63. Under Section 67, where service tax is chargeable on any taxable service with reference to its value, it was stated: 67. Valuation of taxable services for charging service tax (1) Subject to the provisions of this Chapter, where service tax is chargeable on any taxable service with reference to its value, then ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of service by an employee to the employer in the course of or in relation to his employment; (c) fees taken in any Court or tribunal established under any law for the time being in force. xxx xxx xxx Explanation 3. For the purposes of this Chapter;- (a) an unincorporated association or a body of persons, as the case may be, and a member thereof shall be treated as distinct persons; (b) an establishment of a person in the taxable territory and any of his other establishment in a non-taxable territory shall be treated as establishments of distinct persons. 67. A new Section 66B was then introduced, which states as follows: 66B. Charge of service tax on and after Finance Act, 2012 There shall be levied a tax (hereinafter referred to as the service tax) at the rate of fourteen per cent on the value of all services, other than those services specified in the negative list, provided or agreed to be provided in the taxable territory by one person to another and collected in such manner as may be prescribed. 68. As was stated herei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 new services. By the Finance Act, 2011 w.e.f. 1-5-2011 vide Notification No. 29/2011-ST dated 25-4-2011, 2 new services were brought within its net and at the same time, health service was exempted w.e.f. 1-5- 2011 by Notification No. 30/2011-ST dated 25-4- 2011. Thus, the service tax was on a total of 115 services. 68 20. Thus, right from 1994 till 2011, the mode adopted was to specify those services on which it was intended to levy service tax. However, Parliament by the Finance Act, 2012 w.e.f. 1-7-2012 has introduced altogether new system of taxation of services by making a paradigm shift. Now, the scheme of taxation of services is based on negative list of services. Therefore, earlier list of taxable services is no longer applicable. Instead two things have happened. First, the term service is defined whereas there was no definition of service in the Finance Act, 1994 which position remained till 2012. Earlier, each individual service on which tax was levied (known as taxable service) was defined. Secondly, the definition of service given now contains a negative list which is contained in Section 66-D of the Act. In other words, it specifically excludes certain transac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ooperative society registered as a cooperative society under a State Act can certainly be said to be constituted under any law for the time being in force. In R.C. Mitter Sons, Calcutta v. CIT, West Bengal, Calcutta (1959) Supp. 2 SCR 641, this Court had occasion to construe what is meant by constituted under an instrument of partnership, which words occurred in Section 26A of the Income Tax Act, 1922. The Court held: The word constituted does not necessarily mean created or set up , though it may mean that also. It also includes the idea of clothing the agreement in a legal form. In the Oxford English Dictionary, Vol. II, at pp. 875 876, the word constitute is said to mean, inter alia, to set up, establish, found (an institution, etc.) and also to give legal or official form or shape to (an assembly, etc.) . Thus the word in its wider significance, would include both, the idea of creating or establishing, and the idea of giving a legal form to, a partnership. The Bench of the Calcutta High Court in the case of R.C. Mitter and Sons v. CIT [(1955) 28 ITR 698, 704, 705] under examination now, was not, therefore, right in restricting the word const ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
