TaxTMI 
TaxTMI 
2020 (1) TMI 198
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.... C.No.V/CAS/15/112/2014 alone for the period from 01.10.2008 to 31.01.2014, as it is evident from the prayer in the present writ petition. 5.Therefore, this order is confined to the demand confirmed in the impugned order qua first mentioned Show Cause Notice alone. 6.As far as the first first mentioned Show Cause Notice is concerned, the respondent has confirmed a demand of Rs. 30,86,565/- as service tax for the period between 01.10.2008 and 31.01.2014. The respondent has also imposed penalty equivalent to the aforesaid service tax under Section 78 of the Finance Act, 1994 and has further imposed a token penalty Rs. 10,000/- under Section 77 of the Act while dropping the penalty under Section 76 of the said Act in view of imposition of penalty under Section 78 of the said Act. 7.Facts relevant to the present writ petition are briefly narrated. The petitioner is a registered company under Section 25 of the Indian Companies Act, 1956. It collects subscription and usage charges from its members. Since, levy of service tax on service provided by club/association was introduced in the Finance Act, 1994, it was the view of the Service Tax Department that clubs/associations in the coun....
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.... order in terms of the decision of this Court. 16.Though a detailed counter has been filed by the petitioner, I am of the view that the present writ petition can be disposed in the light of the latest decision of the Hon'ble Supreme Court rendered in State of West Bengal and Others vs Calcutta Club Ltd and in Chief Commissioner of Central Excise and Service Tax and Another vs Ranchi Club Ltd, 2019 SCC OnLine SC 1291. 17.At the time when said counter was prepared by the respondent, the final order of the Hon'ble Supreme Court in the above cited case had not been pronounced. The Supreme Court has pronounced the above judgment only on 03.10.2019. It is therefore not necessary to deal with the counter filed by the respondent. 18.The Hon'ble Supreme Court has considered the provisions of the Finance Act, 1994, as it stood prior to and after passing of the Finance Act, 2005 and after 2012 after the advent of negative list with the introduction of the definition of "service" in section 65B (44) of the Finance Act, 1994 vide Finance Act, 2012 w.e.f. 01.07.2012. 19.Relevant portion from the decision of the Hon'ble Supreme Court is reproduced below for reference:- 80.Wi....
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....lding that the section could not be restricted in its application only to a firm which had been created by an instrument of partnership, and that it could reasonably and in conformity with commercial practice, be held to apply to a firm which may have come into existence earlier by an oral agreement, but the terms and conditions of the partnership have subsequently been reduced to the form of a document. If we construe the word "constitute" in the larger sense, as indicated above, the difficulty in which the learned Chief Justice of the Calcutta High Court found himself, would be obviated inasmuch as the section would take in cases both of firms coming into existence by virtue of written documents as also those which may have initially come into existence by oral agreements, but which had subsequently been constituted under written deeds." 82.It is, thus, clear that companies and cooperative societies which are registered under the respective Acts, can certainly be said to be constituted under those Acts. This being the case, we accept the argument on behalf of the Respondents that incorporated clubs or associations or prior to 1st July, 2012 were not included in the service tax ....
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....ave been expressly excluded under Section 65(25a)(i) and 65(25aa)(i) as "anybody established or constituted by or under any law for the time being in force". "Body of persons", therefore, would not, within these definitions, include a body constituted under any law for the time being in force. 90.When the scheme of service tax changed so as to introduce a negative list for the first-time post 2012, services were now taxable if they were carried out by "one person" for "another person" for consideration. "Person" is very widely defined by Section 65B(37) as including individuals as well as all associations of persons or bodies of individuals, whether incorporated or not. Explanation 3 to Section 65B(44), instead of using the expression "person" or the expression "an association of persons or bodies of individuals, whether incorporated or not", uses the expression "a body of persons" when juxtaposed with "an unincorporated association". 91.We have already seen how the expression "body of persons" occurring in the explanation to Section 65 and occurring in Section 65(25a) and (25aa) does not refer to an incorporated company or an incorporated cooperative society. As the same exp....