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TMI Blog2025 (3) TMI 628X X X X Extracts X X X X X X X X Extracts X X X X ..... s and other charges, they have rented their building to M/s. BPCL and received rental charges and further they were engaged in providing help to their members to do their business profitably and provided guidance and trained their members by bringing experts by receiving miscellaneous income for providing such services which are taxable under the category of "Business Auxiliary Services". It was observed that during the period from April 2013 to March 2014, they are receiving income from their customers/clients under various headings as shown in their Balance Sheet. As per Section 66E(a) of the Finance Act, 1994 the "Renting of Immovable Property" service is a declared service, and the other two services are not covered under the Negative List and are not covered under the exemption Notification No. 25/2012-ST dated 20.06.2012. Thus, the services rendered fall within the meaning of "service" defined under Section 65B(44) of the Finance Act, 1994. Though it was noticed that the activity rendered by the appellant is liable to Service Tax it was observed that they have failed to register with the Department, failed to pay the service tax on the taxable income received during the perio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cription fee. From the above averment it may be seen that donations have been received from non-members and it is treated as fee only, because it is non-refundable. The appellant state that donations need not be refunded as same is unheard of, since donations are amounts paid by Philanthropists to the needy. It is also an admitted fact that such donations have been collected from persons and the Board Circular referred to above is applicable only to the amounts received from the Members such as subscription fee, life membership fee and any other additional fees which are distinct from donations. Therefore, the order of the appellate authority is opposed to law. ii. Adverting to the averment made in Para 5 of the impugned order to the effect that Mr. P. Mathiyalagan in his statement dated 16.10.2012 stated that donations have been collected from members for development of association. In this regard, the deposition given by the said Mr. P. Mathiyalagan is relatable to the period 2007-2012 whereas the said person got associated with the appellant only during later portion of the above period. This is enough to show that the person who is alleged to have been deposed is not consciou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t by preferring appeal against a decision, same cannot become inoperative unless and until the said decision is set aside by the higher forum in the appeal. v. The Ld. Counsel states that the amount shown as commission in the Annexure to the Show Cause Notice represents nothing but the expenses incurred on behalf of the LPG Tank Owners as pure agents. The appellant by their reply to the Show Cause Notice had made it clear that they have acted only as pure agents. The Adjudicating Authority and the first Appellate Authority without rebutting the said submission made by the appellant, had passed orders simply classifying it as business auxiliary service and demanded service tax which is not legally tenable. vi. As regards miscellaneous income, the Ld. Advocate submits that the same are amounts not claimed by members/others and they rank only with donations since no quid pro quo is involved. The demand of service tax on this score is not sustainable in law since no element of service is either overtly or covertly involved. vii. The Ld. Advocate states that in para 7 of the impugned order, the first Appellate Authority stated that the appellant had leased and rented out the land ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Club or Association Services at first. The said taxable service is defined under Section 65(105)(zzze) of the Finance Act, 1994 to read as 'any service provided or to be provided to its members, by any club or association in relation to provision of services, facilities or advantages for a subscription or any other amount'. The said definition was amended w.e.f. 16.05.2011 and reads as 'any service provided or to be provided to its members, or any other person, by any clubs or association membership service in relation to provision of services, facilities or advantages for a subscription of any other amount'. The relationship of a member with its association and vice versa is hit by the doctrine of mutuality. There is no service provider and service recipient relationship. The issue as to whether the subscription / entrance fees collected by the association from its members can be subjected to levy of service tax under the said category was considered by the Tribunal in the case of M/s. Ranchi Club Ltd. (supra). The Hon'ble Apex Court in the case of State of West Bengal Vs. Calcutta Club Limited [2019 (29) GSTL 545 (SC)] has also held that the demand of service tax on this count c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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