TMI Blog2020 (2) TMI 119X X X X Extracts X X X X X X X X Extracts X X X X ..... he expression body of persons may subsume within it persons who come together for a common purpose, but cannot possibly include a company or a registered cooperative society. Thus, Explanation 3(a) to Section 65B(44) does not apply to members' clubs which are incorporated. From 2005 onwards, the Finance Act of 1994 does not purport to levy service tax on members' clubs in the incorporated form. Petition allowed - decided in favor of petitioner. - W.P.No.15960 of 2016 - - - Dated:- 2-1-2020 - Mr. Justice C. Saravanan For the Petitioner : Mr.T.Ramesh For the Respondent : Mr.V.Sundareswaran ORDER The respondent submits that the issues no longer res interga. It is squarely covered by the decisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e registered under the respective Acts, can certainly be said to be constituted under those Acts. This being the case, we accept the argument on behalf of the Respondents that incorporated clubs or associations or prior to 1 July, 2012 were not included in the service tax net. 83.The next question that arises is - was any difference made to this position post 1st July, 2012? 84.It can be seen that the definition of service contained in Section 65B(44) is very wide, as meaning any activity carried out by a person for another for consideration. Person is defined in Section 65B(37) as including, inter alia, a company, a society and every artificial juridical person not falling in any of the preceding sub- clauses, as also any a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will not include an incorporated company, nor will it include any other form of incorporation including an incorporated co-operative society. 89.It will be noticed that club or association was earlier defined under Section 65(25a) and 65(25aa) to mean any person or body of persons providing service. In these definitions, the expression body of persons cannot possibly include persons who are incorporated entities, as such entities have been expressly excluded under Section 65(25a)(i) and 65(25aa)(i) as anybody established or constituted by or under any law for the time being in force . Body of persons , therefore, would not, within these definitions, include a body constituted under any law for the time being in force. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rated associations would include persons who join together in some common purpose or common action see ICT, Bombay North, Kutch and Saurashtra, Ahmedabad v. Indira Balkrishna, (1960) 3 SCR 513 at page 519-520. The expression as the case may be would refer to different groups of individuals either bunched together in the form of an association also, or otherwise as a group of persons who come together with some common object in mind. Whichever way it is looked at, what is important is that the expression body of persons cannot possibly include within it bodies corporate. 93.We are therefore of the view that the Jharkhand High Court and the Gujarat High Court are correct in their view of the law in following Young Men's I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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