2022 (5) TMI 800 - HC - Service Tax

Partnership Firm & Partners Not Separate Entities for Tax Purposes

The court held that a partner and a partnership firm are not distinct legal entities. Services provided by a partner to a partnership firm are not taxable ... Juristic person - separate identity - mutuality of services - sharing of profit - whether a Partner in the Firm can be said to be rendering services to the Partnership Firm so as to fall within the ambit of services as per the Finance Act, 1994? - HELD THAT:- For the period prior to 01.07.2012, there is no definition of a ‘person’ in the Finance Act, 1994 - the term ‘person’ was defined for the first time with effect from 1.7.2012 vide Section 65B (37) of the Finance Act. The period of dispute in all these appeals is prior to 01.07.2012 - Prior to 01.07.2012, there was no definition of the term “person” in the Finance Act, 1994. Only with effect from 01.07.2012, vide Section 65B (37) of the Finance Act, 1994, a ‘person’ was defined for the first time. This definition, inter alia, included a firm. The partnership firm, M/s Zydus Healthcare cannot be considered as a ‘person’ distinct from the Respondent – partner. Therefore, there cannot be a service provider – service recipient relationship between a partner and the partnership firm when a partner discharges his duties as a partner pursuant to deed of partnership. Hence no service tax is payable on the activities performed by the respondent in the capacity of partner to the firm - Section-65(105)(zzb) applies to service provided to a client by a person in relation to business auxiliary service. Hence, two distinct persons are required to attract this levy. Partner’s capital to a firm can be in the form of cash/asset. It can also be in the form of contribution of skill and labour alone without contribution in cash – “sweat equity”. The substantial questions of law are answered in favour of the respondents and against the revenue - appeal dismissed - decided against Revenue. Issues Involved:1. Whether a partner and a partnership firm are distinct legal entities.2. Whether services provided by a partner to a partnership firm are taxable under the Finance Act, 1994.3. Whether remuneration received by a partner from a partnership firm constitutes taxable service or share of profit.4. Applicability of the definition of 'person' under the General Clauses Act to the partnership context.Detailed Analysis:1. Whether a partner and a partnership firm are distinct legal entities:The court examined whether a partner and a partnership firm are distinct legal entities under the Finance Act, 1994. The court referred to the Supreme Court's decision in Dulichand Lakshmibarayan v. Commissioner of Income-tax, which held that a firm is not a 'person' in law but merely an association of individuals. The court emphasized that under Section 4 of the Partnership Act, 1932, a partnership is the relationship between persons who have agreed to share the profits of a business carried on by all or any of them acting for all. Thus, the partners and the firm are one and the same.2. Whether services provided by a partner to a partnership firm are taxable under the Finance Act, 1994:The court analyzed whether the services provided by a partner to a partnership firm fall within the ambit of taxable services under the Finance Act, 1994. The court noted that prior to 01.07.2012, there was no definition of 'person' in the Finance Act, 1994. The court concluded that since a partnership firm is not distinct from its partners, there cannot be a service provider-service recipient relationship between a partner and the partnership firm when a partner discharges his duties pursuant to the deed of partnership. Therefore, no service tax is payable on the activities performed by the respondent in the capacity of a partner to the firm.3. Whether remuneration received by a partner from a partnership firm constitutes taxable service or share of profit:The court examined the nature of remuneration received by a partner from a partnership firm. It referred to the Supreme Court's decision in Commissioner of Income Tax v. R.M. Chidambaram Pillai, which held that the salary paid to a partner is a mode of division of the firm's profits and is therefore part of the profits. The court also cited the decision in Chandrakant Manilal Shah v. CIT, which recognized that a partner's contribution of skill and labor to a firm can be considered as a form of capital contribution, and any remuneration received for such contribution is a special share in the profits of the firm. Thus, the court concluded that the remuneration received by the respondent partner from the partnership firm is a share in the profits and not taxable service.4. Applicability of the definition of 'person' under the General Clauses Act to the partnership context:The court considered the applicability of the definition of 'person' under Section 3(42) of the General Clauses Act, 1897, which includes any company or association or body of individuals. The court referred to the Supreme Court's decision in Dulichand Lakshmibarayan, which held that the definition of 'person' in the General Clauses Act is inapplicable to the partnership context. The court reiterated that a partnership firm is not a separate legal entity distinct from its partners, and therefore, the definition of 'person' under the General Clauses Act does not apply to the partnership context.Conclusion:The court dismissed the revenue's appeals and held that the substantial questions of law are answered in favor of the respondents. The court concluded that a partner and a partnership firm are not distinct legal entities, and the services provided by a partner to a partnership firm are not taxable under the Finance Act, 1994. The remuneration received by a partner from a partnership firm is a share in the profits and not taxable service. The court also held that the definition of 'person' under the General Clauses Act does not apply to the partnership context. The civil applications for stay were disposed of accordingly.