TMI Blog2024 (5) TMI 200X X X X Extracts X X X X X X X X Extracts X X X X ..... CLUB LTD. [ 2019 (10) TMI 160 - SUPREME COURT] is on the principle that due to doctrine of mutuality no service exists between the club or association and its members. When the Hon ble Supreme Court held that the club or association and its members are not two distinct identity and there is a mutuality of interest between both of them on that basis only it was held that since no service provider or service recipient exists service tax is not payable. On the same principle, if any service tax is paid, it has gone from one hand to other within the same entity it cannot be said that the incidence of the service tax has been passed on. It can be seen that the Learned Commissioner (Appeals) held that unjust enrichment is not applicable due to pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Counsel appearing on behalf of the Respondent at the outset submits that there is no dispute that the Service Tax paid by the appellant being an association under club or association services was held not payable as per the following judgments:- Karnavati Club Ltd. Vs. Commissioner of S. T., Ahmedabad- 2013 (31) STR 445 (Tri.-Ahmd.) State of West Bengal Vs. Calcutta Club Limited, 2019 (29) GSTL 545 (SC) Rajasthan Co-Operative Dairy Federation Limited Vs. Commissioner of C.E , Jaiput, 2022 (5) TMI 482-CESTAT New Delhi (Affirmed in 2022 (11) TMI 344- SC Order] Mahindra Holidays and Resorts India Ltd., Vs. The Commissioner of Service Tax, Chennai, 2020 (6) TMI 686- Madras High Court 3.1 He submits that even the various High Courts and Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... djudicating authority. The respondents had filed the claims in view of the decision of Hon'ble High Court of Gujarat in the case of Sports Club of Gujarat vs Union of India. The judgment of the Hon'ble High Court of Gujarat is based on the 'Principles of Mutuality'. I also have the same view that any transaction by the club with its member is not a transaction between two parties. The question of unjust enrichment will arise only when there is the existence of two or more distinctly separate parties. But when the respondents are dealing with their members, we find that they are not separate entities. The Hon'ble High Court proclaimed that; The petitioner is giving service to its members but the club is formed on the prin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service or selling any commodity to its members for a consideration then whether that amounts to sale or not . Hon'ble Supreme Court held that it is a mutuality which constitutes the club and, therefore, sale by a club to its member and its services rendered to the members, is not a sale by club to the members. In the case of Commissioner of Income Tax Vs. Ranchi Club Limited, the Hon'ble Patna High Court affirmed that no one can earn profit out of himself on the basis of principle of mutuality and held that income tax cannot be imposed on the transaction of the club with its members. From the above finding, it can be seen that the Learned Commissioner (Appeals) held that unjust enrichment is not applicable due to principle of mutu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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