TaxTMI 
TaxTMI 
2016 (11) TMI 493
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....ver, the petitioner has not availed such remedy and has filed this writ petition challenging the order in original. 2. Mr.R.Janakiraman, the learned counsel for the petitioner submitted that the impugned proceedings which commenced with the issuance of show cause notice dated 06.04.2015 has been issued in the name of a building and such demand is not sustainable as the provisions of the Finance Act does not provide for recovery of service tax from the property. Therefore, the impugned proceedings being without jurisdiction is liable to be set aside. It is further submitted that in terms of Section 65(90a) of the Act the charges is on the service provider and not on the property and hence each of the seven co-owners have to be considered as service providers for the purpose of invoking the provisions of the Act. Further it is submitted that in the hands of the co-owners service tax cannot be levied as the individual recipients are within the threshold limit and there is no liability under the Act. Further there was no definition of person under the Finance Act during the relevant period and service tax can be levied only on the service provider, namely, in the instant case the indi....
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....her submitted that the property, VSA Vaniga Valagam is co-owned by seven persons who have joined together and constructed the building. 5. The seven co-owners have jointly leased various portions of the property to different persons and the rent is paid by the tenants to all the seven co-owners jointly. The rent so received in consolidated form is thereafter distributed among the seven co-owners in the agreed ratio. Therefore it is submitted that this does not mean that each of the seven co-owners are separately providing the service of renting of immovable property, but all of them are jointly providing the service of renting of immovable property and thus acted as an Association of Persons (AOP). Since no name was given to the AOP by the co-owners, the respondent has used the name VSA Vaniga Valagam for the AOP and this does not mean that the respondent has assessed the building for service tax by treating the building as an assessee. It is further submitted that the petitioner is under the misconception that the building is treated as an assessee, whereas, the notice has not only been issued to the AOP, namely, VSA Vaniga Valagam but also to each of the co-owners separately as ....
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.... service provider. Further the respondent has never used the term AOP anywhere in the notice and for the first time, he is using the same in the counter affidavit that the assessment is on AOP contrary to the notice and order and the assessment having not been done in the status of AOP it is not open to the respondent to say that the assessment is on AOP. While admitting that in the reply dated 05.05.2015 to the show cause notice dated 06.04.2015 the petitioner stated that The Assessee is an AOP consisting of co-owners. But while filing an additional written submissions on 14.03.2016 the petitioner took a different stand that there is no AOP. Further it is submitted that the Income Tax Department has accepted that there is no AOP and that the co-owners do not satisfy conditions precedent to constitute a AOP. It is further submitted that reference to the General Clauses Act is untenable since the enactment under which the petitioner has been proceeded with is a taxation statute and it is not open to the Taxing Authorities to import the definition from the General Clauses Act. Further, the amendment to the Act came into force only in 2012 and no assessment can be made prior to 2012 i....
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....co-owners, in all eight noticeeses. 11. At this juncture, it has to be pointed out that in the earlier writ petition the petitioner was VSA Vaniga Valagam, Veerapandiayar Nagar, Salem 636 004 and in the instant writ petition the petitioner is shown as VSA Vaniga Valagam represented by its co-owner A.Rajendran, Veerapandiayar Nagar, Salem 636 004. Thus the petitioner appears to have taken slightly different stand in describing itself. The contention raised by the petitioner is that in respect of their reply dated 07.11.2014, notice was issued in the name of VSA Vaniga Valagam which is the name of the building and only a copy of the notice was marked to the co-owners. On perusal of the show cause notice dated 06.04.2015 this Court is of the view that apart from VSA Vaniga Valagam and others, namely, A.Ranganayaki and six others are all co-noticees. Therefore to that extent the contention raised by the petitioner deserves to be rejected. The question therefore to be decided is whether the Renting of Immovable Property Service is rendered by VSA Vaniga Valagam which is owned by seven persons stated to be represented by a Power Agent who has leased out the property, income ....