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TMI Blog2024 (6) TMI 1458X X X X Extracts X X X X X X X X Extracts X X X X ..... oner of CGST and Central Excise Ahmedabad North was of the view that the Order-In-Original is not legal and proper and after review the same an appeal was filed before the Commissioner (Appeals) which has been decided by the impugned order in appeal No. AHM-EXCUS-002-APP-023-24-18-19 dated 27th June, 2018, wherein the learned Commissioner (Appeals) has found that the respondent club namely M/s. Rajpath Club has wrongly paid Service Tax under the category of "Club and Association Services" and he found that the original adjudicating authority has correctly sanctioned the refund claims filed by the respondent club. The department is before us against the above mentioned impugned order in appeal dated 16.07.2018. 3. The department in their appeal memo as primarily pointed out that impugned order in appeal is legally not sustainable on following grounds: "24. Further regarding question of principle of mutuality after 01.07.2012, in a case of M/s Emerald Leisures Limited, Mumbai (Formerly Apte Amalgamations Ltd) before AUTHORITY FOR ADVANCE RULINGS (Central Excise, Customs and Service Tax) DATED 11th day of September, 2015 in Ruling No. AAR/ST/10/2015 in Application No. AAR/44/ST/07/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... instant case for the reason that facts obtaining here are different from those in the cited case. 25. Further, the assessee is registered with the Service Tax department as 'Club' under the constitution of business for providing 'club or association service to its members. Hence, the assessee le. M/s. Rajpath Club Ltd., S. G. Road, Ahmedabad which is working as club is an entity distinct from its members. Thus, the services rendered by M/s. Rajpath Club Ltd., S. G. Road, Ahmedabad as a club to its members are not hit by the bar of mutuality. Hence, service tax collected and paid by the M/s. Rajpath Club Ltd., S. G. Road, Ahmedabad for provision of Club or association service is legal and correct. Therefore, no refund can be claimed by the assessee for collection and payment of such legally correct taxes. 26. Further the findings of the Commissioner (Appeal) that any transaction by the club with its member is not a transaction between two parties and therefore, the question of unjust enrichment does not arise, is also not legally correct. As discussed above, since the club (incorporated entity) and its members are separate and distinct entity, if the refund is grante ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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.). Thus the word in its wider significance, would include both, the idea of creating or establishing, and the idea of giving a legal form to, a partnership. The Bench of the Calcutta High Court in the case of R.C. Mitter and Sons v. CIT ((1955) 28 ITR 698, 704, 705] under examination now, was not, therefore, right in restricting the word "constitute" to mean only "to create", when clearly it could also mean putting a thing in a legal shape. The Bombay High Court, therefore, in the case of Dwarkadas Khetan and Co. v. CIT [(1956) 29 ITR 903, 907], was right in holding that the section could not be restricted in its application only to a firm which had been created by an instrument of partnership, and that it could reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The explanation to Section 65, which was inserted by the Finance Act of 2006, reads as follows: "Explanation: For the purposes of this section, taxable service includes any taxable service provided or to be provided by any unincorporated association or body of persons to a member thereof, for cash, deferred payment or any other valuable consideration:" 79. It will be noticed that the aforesaid explanation is in substantially the same terms as Article 366(29-A) of the Constitution of India. Earlier in this judgment qua sales tax, we have already held that the expression "body of persons" will not include an incorporated company, nor will it include any other form of incorporation including an incorporated co-operative society. 80. 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 forc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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