2013 (11) TMI 1003 - HC - Service Tax

Court Rules Lottery Ticket Sales Not Subject to Service Tax

M/s. Future Gaming Solutions India Private Limited Versus Union of India And Others

M/s. Future Gaming Solutions India Private Limited Versus Union of India And Others - TMI, [2014] 67 VST 58 (Sik), 2014 (36) S.T.R. 733 (Sikkim) Issues Involved:1. Jurisdiction of Respondents to demand service tax.2. Legality of enforcing Finance Act, 1994 (as amended by Finance Act, 2012) on the Petitioner.3. Whether the sale of lottery tickets constitutes a 'service'.4. Legislative competence of Parliament to pass a law on lottery tickets.5. Whether the transaction between the Petitioner and the Government of Sikkim is one of sale and purchase or a service.Issue-wise Analysis:1. Jurisdiction of Respondents to Demand Service Tax:The Petitioner challenged the jurisdiction of Respondents No.1 to 3 in demanding service tax, asserting that the Finance Act, 1994, as amended by the Finance Act, 2012, excludes 'lottery' and 'transaction in actionable claim' from the purview of service tax. The Court noted that the Finance Act, 2012, introduced a negative list approach, specifying services not liable for service tax, which includes 'betting, gambling or lottery' under Section 66D.2. Legality of Enforcing Finance Act, 1994 (as Amended by Finance Act, 2012) on the Petitioner:The Court examined the legality of enforcing the amended Finance Act on the Petitioner. The Petitioner argued that their activity of selling lottery tickets is not a 'taxable service' as defined under the Act. The Court referred to the decision in Sunrise Associates vs. Govt. of NCT of Delhi, which held that lottery tickets are 'actionable claims' and thus excluded from the definition of 'service'.3. Whether the Sale of Lottery Tickets Constitutes a 'Service':The Petitioner contended that their transaction with the Government of Sikkim is one of sale and purchase, not rendering any service. The Court agreed, stating that the Petitioner buys lottery tickets in bulk and resells them, which is a transaction of sale and purchase, not a service. The Court also noted that the Finance Act, 2012, excludes 'transaction in actionable claim' from the definition of 'service'.4. Legislative Competence of Parliament to Pass a Law on Lottery Tickets:The Petitioner argued that the imposition of service tax on lottery tickets by a Central Legislation is unconstitutional, as 'Betting and gambling' and 'Taxes on luxuries, including taxes on entertainments, amusements, betting, and gambling' fall under the State Legislature's domain. The Court upheld this view, noting that the power to tax lotteries is inherent in the expression 'betting and gambling' under Entry 62 of List II of the Seventh Schedule to the Constitution.5. Whether the Transaction Between the Petitioner and the Government of Sikkim is One of Sale and Purchase or a Service:The Court examined the agreement between the Petitioner and the Government of Sikkim, concluding that the relationship is that of a buyer and a seller on a principal-to-principal basis. The Petitioner purchases lottery tickets at a discounted price and resells them, earning a profit margin, which is a normal trade practice. The Court found no element of service in this transaction.Conclusion:The Court declared that the transactions in lottery tickets are not liable to service tax under the provisions of the Finance Act, 1994, as amended by the Finance Act, 2012. Consequently, the impugned letter demanding service tax from the Petitioner was quashed. The Writ Petition was allowed, and no order as to costs was made.