TMI Blog2022 (11) TMI 1228X X X X Extracts X X X X X X X X Extracts X X X X ..... discussing the principle of mutuality it has been held by the Tribunal that the activities undertaken by the appellant therein should not fall within the scope and ambit of taxable service, for payment of service tax. In the case in hand the penalty u/s. 70 ibid is imposed on the appellant for not filing the ST- 3 return on time. Section 70 ibid provides that every person liable to pay service tax shall himself assess the tax due on the services provided by him and shall furnish to the superintendent of central excise a return in such form and in such manner and at such frequency and with such late fee not exceeding twenty thousand rupees, for delayed furnishing of return, as may be prescribed. Therefore only the persons who are liabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Co-operative Housing Society Ltd., for not filing the Service Tax Returns in the prescribed form ST-3 as required under Section 70 ibid r/w. Rule 7 electronically through ACES within the period prescribed therein. A show cause notice dated 19.02.2013 was issued for imposing penalty under Section 70 ibid r/w Rule 7C ibid for delayed filing of ST-3 Returns for the period from April, 2009 to March, 2011 and October, 2011 to March, 2012. The Adjudicating Authority vide Order-in-Original dated 12.6.2014 imposed the penalty of Rs.16,100/- u/s. 70 ibid r/w. Rule 7C ibid. On appeal filed by Revenue, the learned Commissioner (Appeals) vide impugned order dated 28.5.2018 enhanced the penalty to Rs.83,100/-. 3. Section 70 ibid provides that e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red to be void and of no effect. 5. The issue whether the services provided by the Housing Society to its members falls within the taxable net, came up for consideration before this Tribunal in the matter of Tahnee Heights Co-operative Housing Society Ltd. vs. Commr. of CGST, Mumbai South;2019(21) GSTL 440 (Tri.-Mumbai) and while discussing the principle of mutuality it has been held by the Tribunal that the activities undertaken by the appellant therein should not fall within the scope and ambit of taxable service, for payment of service tax. The relevant paragraphs of the said decision is reproduced as under:- xxx xxx xxx 7. On reading of the above statutory provisions, it transpires that there is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not fall within the ambit of the taxable club or association service. Further, in the case of Matunga Gymkhana (supra), this Tribunal has also taken the similar view. Though the said decisions were rendered under the un-amended definition of taxable service (effective up to 30-62012), but the ratio laid down therein is squarely applicable to the post amended definition of service contained in the negative list regime (w.e.f. 1-72012), inasmuch, in absence of presence of both service provider and service receiver, the transaction cannot be statutorily terms as taxable service and will not be exigible to service tax. Even under the negative list regime, for the period from 1-10-2015 to 31-3-2016, this Tribunal in the case of Rajpath Club ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 society and is duty incorporated under the Act of 1960. The appellant also do not provide any services to its members, who pay the amount towards their share of contribution, for occupation of the units in their respective possession. Further, the fact is also not under dispute that the appellant do not provide any facilities or advantages for subscription or any other amount paid. Thus, under such circumstances, the appellant cannot be termed as an unincorporated association or a body of persons, for the purpose of consideration as a distinct person . Accordingly, the explanati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne; 2012 (20) STR 401 (Jhar.). Therefore in view of the principle of mutuality of interest as discussed hereinbefore and looking into the fact that the members of the Appellant are providing services to themselves, no Service Tax is leviable on the same. 7. In the case in hand the penalty u/s. 70 ibid is imposed on the appellant for not filing the ST- 3 return on time. Section 70 ibid provides that every person liable to pay service tax shall himself assess the tax due on the services provided by him and shall furnish to the superintendent of central excise a return in such form and in such manner and at such frequency and with such late fee not exceeding twenty thousand rupees, for delayed furnishing of return, as may be prescribed. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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