TaxTMI 
TaxTMI 
2014 (9) TMI 345
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....Program in Information Technology Management. In order to obtain the Degrees or Diplomas offered by the appellants, the students are required to attend to lectures conducted by the appellants and appear for the examinations and the degrees or diplomas are awarded on successful completion of the curriculum set up by the appellants and passing of examinations. Inquiries conducted by the department revealed that the courses conducted by the appellants are not recognized either by the University Grants Commission, All India Council of Technical Education or any of the Professional Councils at National level which are empowered to approve such courses in the professional stream. It therefore appeared that the appellant was liable to pay service tax on the consideration received for the conduct of the courses under the category of "Commercial Training or Coaching". Accordingly, a show-cause notice dated March 2007 was issued demanding service tax under the category of "Commercial Training or Coaching" for the period May 2005 to December 2006 amounting to Rs. 1,71,42,174/- invoking extended period of time under the provisions of Section 73(1) of the Finance Act, 1994, read with the provis....
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....nbsp; The exclusion clause covers, - "preschool coaching and training centre" and - "any Institute or establishment" which issues any certificate or diploma or degree or any educational qualification recognized by law for the time being in force. 3.2 The ld. Counsel submits that as can be seen from the above definition, what is sought to be taxed is only commercial training or coaching and 'education' has never been intended to be taxed. Education is different from training or coaching and is not covered by the levy. Therefore, only such of those institutions which impart training or coaching are liable to service tax and not institutions such as that of the appellant which provides education. This is further evidenced from Section 65(90a), 65(20) and 65(115) where in respect of "renting of immovable property" the levy has excluded property rented out to an educational body imparting skill or knowledge or lessons on any subject or field, other than a commercial training or coaching centre. Similarly in the case of "rent a cab" service, the renting of cab to an educati....
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.... the introduction of the taxable service of commercial training or coaching clearly amplifies and specifies that it is the activity of coaching or training for competitive exams, which is sought to be taxed. Similarly, Circular No. 334/3/2011, dated 28-2-2011 specifically reiterates that the amendment effected In 2010 was to include within the tax net only coaching and training Centres that is not recognized by law, irrespective of whether the institution is providing any other course recognized by law. In the light of the above, the ld. Counsel submits that the appellant is not liable to pay service tax. Alternatively, the ld. Counsel pleads that extended period of time is not invocable in the present case as the appellant was under the bona fide belief that since they were imparting education and not Commercial Coaching or training, they are not liable to pay service tax. Accordingly, the demand of service tax, if at all sustainable, should be for the normal period of time. Since there was no intention to evade or avoid of tax, penalty is not imposable under Section 78 as the elements required for Imposition of penalties of an equivalent amount of penalty under the said Section i....
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....ng as the institutions which undertake the above activities are not recognized by law, they are liable to pay service tax under the category of commercial training or coaching. 5. We have considered the submissions made by both the sides very carefully. 5.1 Sections 65(26) and 65(27) of the Finance Act, 1994 define the activities as follows : "(26) "Commercial training or coaching" means any training or coaching provided by a commercial training or coaching centre; (27) "Commercial training or coaching centre" means any institute or establishment providing commercial training or coaching for imparting skill or knowledge or lessons on any subject or field other than the sports, with or without issuance of a certificate and includes coaching or tutorial classes but does not include preschool coaching and training centre or any institute or establishment which issues any certificate or diploma or degree or any educational qualification recognized by law for the time being in force". Section 65(105)(zzc) defines the "taxable service" as "any service provided or to be provided to any person by a commercial training or coaching centre in relation to commerci....
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....sioner v. ICFAI Institutions) [2013 (30) S.T.R. J176 (S.C.)]. These cases were remanded back to the Tribunal for fresh consideration in the light of the newly inserted Explanation in Section 65(105)(zzc) of Finance Act, 1994 by Finance Act, 2010, which was made effective from 1st July, 2003. This decision of the Apex Court was in pursuance to the earlier decision of the Hon'ble Supreme Court where a three judges bench of the Court allowed the appeal filed by the Commissioner of Service Tax against the order of this Tribunal in the case of Great Lakes Institute of Management reported in 2010 (19) S.T.R. 481. It is in the context of remand by the Hon'ble Apex Court that the matter was once again considered by the South Zonal Bench of this Tribunal at Bangalore in the case of ICFAI, Hyderabad and Others vide Final Order Nos. 514-520/2012, dated 31-7-2012 [2013 (30) S.T.R. 273 (Tri. - Bang.)]. All the averments made before us in the present case were also made before the Tribunal in the case of ICFAI with respect to the educational nature of the activity undertaken and this Tribunal observed as follows :- "12. We have given careful consideration to the submissions. The substant....
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....tion for training or coaching per se determines the commercial character of the activity. To the same effect is the Budget instruction noted in para (5) of this order. What is reflected in the amendment seems to be a conceptual change with regard to the term "commercial" used in Section 65(26) and (27). The change of law, which is substantial, has come about with retrospective effect from 1-7-2003. We must now proceed to determine whether the ICFAI entities, the ISB, the SIFT and the IIRM had been imparting training or coaching to their students for a consideration during the respective periods of dispute. 14. It has been argued on behalf of the assessees that they are educational institutions and were imparting education, and not training or coaching, to the students. Per contra, it has been argued on behalf of the Revenue that "education" necessarily includes the process of imparting knowledge or lessons on any subject and hence the same would get covered within the ambit of the expression "training or coaching" appearing under clauses (26), (27) and (105)(zzc) of Section 65 of the Finance Act, 1994. In this connection, the learned Special Consultant has relied on P. Rama....
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....degree or other educational qualification recognized by law for the time being in force on account of which they were not covered by the exclusion clause of Section 65(27) and remained within the definition of "commercial training or coaching centre". Institutions which - - are established by, or under, or in accordance with, any law to impart education; - offer one or more courses of study with specific curriculum for each course and specific syllabus for each subject; - conduct examinations periodically and evaluate them; - organize extracurricular activities to develop skills in arts, sports etc.; - create various fora to help the students imbibe social and democratic values; - issue certificates or diplomas or degrees recognized by law, to the successful students; are generally perceived as "educational institutions". In our view, only such institutions were covered by the exclusion clause of the definition of....
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....called universities can claim immunity to levy of service tax under Section 65(105)(zzc) of the Finance Act, 1994 on the ground of being covered by the exclusion clause of the definition of "commercial training or coaching centre" under Section 65(27) of the Act. 17. For the reasons already stated, we hold that the assessees were providing to their students "training or coaching" for a consideration and would ipso facto fall within the ambit of "commercial training or coaching centre" envisaged in the explanation to Section 65(105)(zzc) of the Finance Act, 1994. As this explanation has retrospective effect from 1-7-2003, the activities undertaken by all the assessees during the periods of dispute would get covered within the meaning of the phrase "training or coaching imparted for consideration" occurring in the text of the explanation. In other words, the explanation to Section 65(105)(zzc) of the Act has very wide scope to encompass the activities of the assessees and render them exigible to service tax under Section 65(105)(zzc) of the Act. In the result, the assessees have no case on merits. 5.5 In view of the above decision of the Tribunal in ICFAI case, we are....
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....arted in specific areas relating to information technology/management applicable in various fields. These are not general purpose courses but are designed to impart specific skills and knowledge in certain specialized areas. For example, the curriculum for Dual Country MBA program includes Accounting, Quantitative Methods, Managerial Communication, Computer Programming, Organizational Behaviour, Financial Management, Marketing Management, Systems Analysis and Design and so on. Similarly the Masters Program in Advanced Information Technology with Specialization in Computational Fluid Dynamics covers computer architecture and operating systems, Computer knowledge, computer program, software engineering and project management and so on. Thus, each course is designed to impart specific skills and training in specific areas. Therefore, the activities undertaken will come within the category of "training or coaching". Every education results in enhancement of skills and entails training or coaching. Thus there cannot be any artificial distinction between training and coaching and education in general. 5.8 In view of the above and the order dated 31-7-2012 of the co-ordinate bench....
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....ng the provisions of Section 11A of the Central Excise Act, 1944 held that the expression "suppression" used in the proviso to section 11A of the Central Excise Act, 1944 should be construed strictly and mere omission to give correct information does not amount to suppression unless it was deliberate with intent to evade payment of duty. Section 73 of the Finance Act, 1994 is pari materia with Section 11A and therefore, the said decision of the Hon'ble Supreme Court would apply. Mere failure to register with the department and pay service tax, by itself can not amount to suppression unless the same was with an intent to evade payment of tax. There is no evidence led by the Revenue to that effect either in the show cause notice or in the Impugned order. Therefore, the demand is sustainable only for the normal period of limitation and we hold accordingly. As the notice has been issued in March, 2007, and the appellant had not filed any returns, the period from October, 2005 onwards (for which return has to be filed by 25th April, 2006 and the normal period has to be computed from the due date of return) would come within the normal period and the appellant is liable to discharge serv....