2015 (10) TMI 297 - AAR - Service Tax

Club Membership Fees Subject to Service Tax; Security Deposit Exempt

M/s EMERALD LEISURES LIMITED Versus THE COMMISSIONER OF SERVICE TAX, MUMBAI-II, MUMBAI

The Authority ruled that the relationship between the club and its members constitutes a provision of 'service' under the Finance Act, 1994, making ... Club membership - Membership fee, Annual fee and other charges received from members - refundable security deposit - Whether the relationship between the applicant and members of the club could be considered as provision of ‘service’ by one person (service provider) to another person (service receiver) - Held that:- The relationship between the applicant and members of the club should be considered as provision of “service” by one person (service provider) to another person (service receiver) for the purpose of Section 65B (44) of the Finance Act, 1994 read with Sections 66B, 66D and Section 66E of the Finance Act, 1994 and accordingly, the Membership fee, Annual fee and other charges received from members from time to time be liable for Service Tax. Refundable security deposit and interest there-on should not be subjected to Service Tax as per provisions of the Finance Act, 1994. Decided partly in favor of assessee. Issues Involved:1. Whether the relationship between the applicant and members of the club constitutes a provision of 'service' under the Finance Act, 1994.2. Whether the refundable security deposit is subject to Service Tax.Issue-wise Detailed Analysis:1. Relationship as Provision of 'Service':- Applicant's Argument: The applicant argued that the relationship between the club and its members does not constitute a 'service' as there is no distinct service provider and service receiver due to the principle of mutuality. They cited several judgments, including the Dalhousie Institute and Saturday Club Ltd., to support their claim that the club and its members are not separate entities and hence, no service is provided.- Revenue's Argument: The Revenue countered that as per Section 65B (37) and (44) of the Finance Act, 1994, an unincorporated association or body of persons and its members are treated as distinct persons. They emphasized that the club is a business entity with shareholders and a profit motive, thus making the services provided to the members taxable.- Authority's Observation: The Authority noted that the term 'activity' under Section 65B (44) has a wide connotation and includes both active and passive activities. The provision of facilities by the club constitutes an 'activity'. The Authority also pointed out that the club and its members are deemed separate persons as per the deeming provision introduced post-01.07.2012, thus nullifying the principle of mutuality argument.- Conclusion: The Authority ruled that the relationship between the applicant and its members constitutes a provision of 'service' under the Finance Act, 1994, making the Membership fee, Annual fee, and other charges received from members liable for Service Tax.2. Refundable Security Deposit:- Applicant's Argument: The applicant contended that the refundable security deposit is not a consideration for any service provided and hence should not be subject to Service Tax. They argued that the deposit is a condition of the contract and not a charge for services rendered. They cited judgments such as CIT vs. Tollygunge Club Ltd. to support their claim.- Revenue's Argument: The Revenue argued that the notional interest earned on the refundable security deposit should be added to the value of the service under Section 67 of the Finance Act, 1994, as it enriches the applicant and should be considered part of the gross consideration.- Authority's Observation: The Authority observed that the refundable security deposit is not a consideration for any services rendered and is meant for security towards the facilities and amenities in the club. They noted that there is no provision under the Finance Act, 1994, allowing the addition of notional interest to the value of taxable service. The Authority also referenced the judgment in CIT vs. Tollygunge Club Ltd., which supported the view that the refundable security deposit is not a consideration.- Conclusion: The Authority ruled that the refundable security deposit and the interest thereon should not be subjected to Service Tax as per the provisions of the Finance Act, 1994.Ruling:1. The relationship between the applicant and members of the club is considered a provision of 'service' under Section 65B (44) of the Finance Act, 1994, making the Membership fee, Annual fee, and other charges received from members liable for Service Tax.2. The refundable security deposit and interest thereon are not subject to Service Tax as per the provisions of the Finance Act, 1994.