TMI Blog2022 (2) TMI 1154X X X X Extracts X X X X X X X X Extracts X X X X ..... ly of goods - Further, an explanation is added to say that the person and its members or constituents shall be deemed to be two separate persons and overriding effect has been given to the said explanation over anything contained in any other law for the time being in force and even to the judgements of any Court, Tribunal or any other authority. The Services provided by the Club to its members is taxable as per clause (aa) of sub-section (1) of Section 7 of the CGST Act, 2017 w.e.f. July 1, 2017. - RAJ/AAR/2021-22/23 - - - Dated:- 27-9-2021 - J.P. MEENA AND M.S. KAVIA, MEMBER Present for the applicant : Pradeep Jain Note: Under Section 100 of the CGST/RGST Act, 2017, an appeal against this ruling lies before the Appellate Authority for Advance Ruling constituted under section 99 of CGST/RGST Act, 2017, within a period of 30 days from the date of service of this order. At the outset, we would like to make it clear that the provisions of both the CGST Act and the RGST Act are the same except for certain provisions. Therefore, unless a mention is specifically made to such dissimilar provisions, a reference to the CGST Act would also mean a reference to the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally excluded any body established or constituted under any law for the time being in force . Hence, any body established or constituted by or under any law for the time being in force is not included. Therefore, it was concluded that incorporated clubs or associations (under Companies Act/Cooperative Society Act) were not included in service tax net for this mentioned period. The service tax was payable only by un-incorporated clubs. Service tax liability post 01.07.2012:- It was held that the definition of service is very wide meaning any activity carried out by a person to another person for consideration. Furthermore, the definition of person includes association of persons or body of individuals whether incorporated or not. Now, the question before the Supreme Court was that whether the doctrine of agency, trust and mutuality as held to be applicable in the sales tax judgment of Supreme Court in Young Men's Indian Association was applicable for service tax also or not? It was however mentioned that the analogy that in member's club, there is no sale by one person to another for consideration as one cannot sell something to oneself would equally apply of service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In this context, it is also pertinent to make reference to entry No. 7 of the Schedule II of the CGST Act, 2017 which reads as follows:- 7. Supply of Goods The following shall be treated as supply of goods, namely:- Supply of goods by any unincorporated association or body of persons to a member thereof for cash, deferred payment or other valuable consideration. It is also worth noting that according to amendment in Section 7 of the CGST Act, a new Sub-Section (1A) has been inserted wherein certain activities or transactions which constitute a supply in accordance with the provisions of sub-section (1), they shall be treated either as supply of goods or supply of service as referred to in schedule II. This has the effect that the transactions which are specified in schedule II shall be treated as supply only if they are made by a person in course or furtherance of business for consideration. However, it is also to be noted that there is no similar entry for supply of service. Moreover, now the question arises is that whether the interpretation of term body of persons as taken by Supreme Courts can be made applicable in GST or not ? The applicant submits that the ana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reads as under : (102) services means anything other than goods, money and securities but includes activities relating to the use of money or its conversion by cash or by any other mode, from one form, currency or denomination, to another form, currency or denomination for which a separate consideration is charged. It is also relevant here to reproduce the meaning of supply under GST Act, which is as under Section 7 - Scope of Supply.- (1) For the purposes of this Act, the expression supply includes,- (a) all forms of supply of goods or services or both such as sale, transfer, barter, exchange, license, rental, lease or disposal made or agreed to be made for a consideration by a person in the course or furtherance of business; (b) import of services for a consideration whether or not in the course or furtherance of business; [and] (c) the activities specified in Schedule I, made or agreed to be made without a consideration; [(1A) where certain activities or transactions constitute a supply in accordance with the provisions of sub-section (1), they shall be treated either as supply of goods or supply of services as referred to in Schedule II] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for advance ruling (AAR) is meant for Goods Service tax (GST) only. To decide a question pertaining to old era i.e. Service Tax is not in the scope of this Authority. However, on gone through the contention of the applicant in the instant case, the purport of the applicant is to seek advance Ruling to confirm the applicability of GST on Services Provided by club to its members. Hence, we will discuss the case in light of GST only. 3. The Applicant has sought Advance Ruling to confirm the applicability of GST on Services Provided by club to its members. The applicant has taken the aid of Judgment delivered by the Hon'ble Apex Court in the case of State of West Bengal V/s Calcutta Club Limited in Civil Appeal No. 4184 of 2009. The applicant has relied on the above said judgment and has contended that as service tax was not leviable on the services provided by a club to its member under erstwhile Service tax regime, so the same will also apply in GST Regime. The applicant has also taken shelter of Section 7(1) (A) and Schedule II of CGST/RGST Act to discriminate between Goods and Services and contented that as per schedule II the Supply of Goods by the Club to its member is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be two separate persons and the supply of activities or transactions inter se shall be deemed to take place from one such person to another (b) import of services for a consideration whether or not in the course or furtherance of business; [and] (c) the activities specified in Schedule I, made or agreed to be made without a consideration;[****] (d) [*****] [(1A) where certain activities or transactions constitute a supply in accordance with the provisions of sub-section (1), they shall be treated either as supply of goods or supply of services as referred to in Schedule II] (2) Notwithstanding anything contained in sub-section (1),- (a) activities or transactions specified in Schedule III; or (b) such activities or transactions undertaken by the Central Government, a State Government or any local authority in which they are engaged as public authorities, as may be notified by the Government on the recommendations of the Council, shall be treated neither as a supply of goods nor a supply of services. (3) Subject to the provisions of [sub-sections (1), (1A) and (2)], the Government may, on the recommendations of the Council, specify, by notifi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
