TaxTMI 
TaxTMI 
2021 (4) TMI 1209
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....71,15262 to 15265/18 : Ms.P.Poornima for M/s.G.Vijay Anand Associates For the Petitioner in WP4708/18 : Mr.G.Vinodkumar for M/s.G.Vijay Anand Associates For the Petitioner in WP 11397/18 : Mr.A.V.Arumugam For the Petitioner in WPs 1186, 1187/18 : Mr.K.Seetha Ram For the Petitioner in WPs 24972 to 24975, 25211/17, 973, 5232, 9826,9828, 14547,14570, 15602,17296, 27765, 27766,27783, 27787,27797, 30462,30467, 31791, 30473, 31779,31784/18 : Mr.Velayutham Pichaiya For the Respondents-1&2 in WPs 21446,32455,32112/17, 531/18, R-1 to R-3 in WPs 1186, 1187, 11397/18, R-1 to R-5 in WPs 9826,15602,27765, 27766, 27783, 27787,27797, 30462, 30467, 30473, 17296/18, R-1 to R-4 in WPs 25211/17, 973,4371, 5232/18, 24972 to 24975/17, 1666 to 1668, 31779, 31784,31791, 15262 to 15265/18, R-1 to R-4 and R-6 in WP 4280, 4708, R-1 to R-6 in WPs 14547, 14570/18 : Mr.P.T.Ramkumar For the R-1 to R-5 in WP 9828/18 : Ms.T.P.Savitha For the R-5 in WPs 24972 to 24975, 25211/17, 15262 to 15265, 31779,31784,31791/18, R-6 in WPs 9826, 9828, 15602/18, R-3 in WPs 32112,32455/17 : Mr.A.P.Srinivas For the R-6 in WPs 31779,31784,31791/18: : Mr.Mohammed Shallia, Special Government Pleader (Taxes) For the Respondent....
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....g anything contained in sub-section (1),-- (a) activities or transactions specified in Schedule III; or (b) such activities or transactions undertaken by the Central Government, a State Government or any local authority in which they are engaged as public authorities, as may be notified by the Government on the recommendations of the Council, shall be treated neither as a supply of goods nor a supply of services. (3) Subject to the provisions of 5 [subsections (1), (1A) and (2)], the Government may, on the recommendations of the Council, specify, by notification, the transactions that are to be treated as- (a) a supply of goods and not as a supply of services; or (b) a supply of services and not as a supply of goods." 5. With reference to Section 7(1-A) Schedule II deals with activities or transactions to be treated as supply of goods or supply of services. Schedule II Sub-clause (2) stipulates Land and Building (a) any lease, tenancy, easement, licence to occupy land is a supply of services; (b) any lease or letting out of the building including a commercial, industrial or residential complex for business or commerce, either wholly or partly, is a supply of services....
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....the Deputy Commissioner of Central Tax and Customs, issued Press Note in C.No.V/30/155/2017-CC (VZ) Media dated 17.11.2017, which reads as under:- "Doubts have been raised regarding the collection of GST on parking charges at Railway Station and such public places. It is informed that under the GST law, "Parking Lot Services" fall under HSN Code No.996743 and liable to GST @ 18% on the parking charges paid. In this connection, contractors of Parking Lot Services are advised to obtain GST Registration and to pay the GST as applicable on all parking charges collected by them. In case of any difficulty, they may contact the local Central GST Seva Kendras in the matter of Registration, filling of Returns, Payment of Taxes, etc." 9. Following the above Press Note, Ministry of Railways, more specifically, Joint Director Traffic Commercial (G), Railway Board, issued a clarification regarding levy of Goods and Services Tax (GST) for parking contract and the said clarification, reads as under:- "Please refer to Board's letter no. of even no. dated 29.06.2017 regarding details of operating instructions for levy of GST for ATM/STD-PCO/parking and booking of retiring room. In contin....
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....e and it is mentioned that instructions for levy of GST for services rendered by Railways to outside agencies viz., on Transportation of Passenger, Transportation of Goods and Rental of Immovable Property has been issued by the concerned Directorate of Railway Board from time to time. However, it is also equally important that the agency appointed by Railways to render a services viz., Parking Contractors, Catering Stall (mobile or static), Food Courts at Railway Station or establishments also levy the GST Rates appropriately as per the GST Rules. In other words, these Contractors have to generate the Tax Invoice containing their GSTIN, CGST/SGST- UTGST or IGST amount duly bifurcated, etc so that there is no case for any complaint from any quarters. It is therefore incumbent upon the executive Departments who administer these agency to advise the agencies of the compliances expected from them in the GST regime. Following action may kindly be taken by the Nodal Officers in each Zonal Railways and Production Units immediately:- a) Nodal Officer may direct all the Departments in their jurisdiction to immediately issue directives to raise GST Complaint Invoices. In fact, the GST ....
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....n to recover the correct amount of such charges or taxes due from the licensee/licensees from the date of occupation by him/them of the said premises. The cess and other charges will be payable annually with first installment while the license fee will be payable in quarterly installments every year." 17. It is further admitted that the writ petitioners had agreed for the terms and conditions stipulated in the agreement and as per the said agreement, the licensee shall pay during the continuance of the license all cesses, rates, water charges, taxes and other charges or taxes in respect of the said premises. Thus, it is made clear and further admitted that they are liable to pay taxes as admissible. 18. The respective learned counsel appearing on behalf of the parties informed that the period of license already expired, except in few cases, in respect of all these writ petitions. However, in respect of expired license, the respondent-Southern Railways is not refunding the deposit amount and therefore, they are constrained to move the present writ petitions. The deposits are not refunded on the ground that they are liable to pay CGST/SGST at 18% as per the terms and conditions of ....
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....greement is void. In every case where a statute inflicts a penalty for doing an act, though the act be not prohibited, yet the thing is unlawful, because it is not intended that a statute would inflict a penalty for a lawful act." 25. In the case of P.C.Paulose, Sparkway Enterprises vs. Commissioner of Central Excise and Customs [2011 (21) STR 353 (SC)], the Supreme Court, in paragraphs 5, 13, 14, 15 and 16, held as under:- "5. It is evident from the aforesaid terms and conditions of the agreement that the appellant was granted licence by AAI to collect the admission ticket charges so as to provide amenities and facilities to the passengers and visitors at the airport. Under the said agreement, the appellant was also required to pay all rates, assessment, outgoings and other taxes as leviable on the licensee as per law. It is also clear therefrom that AAI has only provided bare space and all expenses for providing services to passengers/visitors are to be borne by the appellant. 13. The licence agreement clearly stipulates that AAI is entitled in law to grant licence at its Calicut Airport for the purpose of airport admission so as to provide amenities and facilities to passen....
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....which is to be used for the purpose of their business. Some spaces have been given for display of hoardings/advertisements. 22.5 With regard to charging of service tax on the amount received by the appellant from the concessionaires/licensees managing access to the visitors' gallery, car parking and issue of season tickets and temporary passes, it is pleaded by the appellant that in terms of the Apex Court's judgment in case of P.C.Paulose, Sparkway Enterprises vs. CCE (supra), it is the licensees, authorised by the appellant who manage the services, who would be liable to pay service tax and not the appellant who are only charging a fixed amount from them as licensee fee/royalty. However, the Department's plea on this point is that firstly, since the licensees are providing the service of managing car parking, visitor's entry into Airports/Civil Enclaves and issue of temporary passes and season tickets on behalf of the appellant, it is the appellant who would be liable to pay service tax on these services and secondly in any case, the activity of the appellant of transferring their right to the licensees to collect the entry tickets or parking fee or fee for is....
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.... the provisions of the CGST Act. 32. This being the Scheme of the CGST Act, there is no reason whatsoever to grant exemption as far as these contractors are concerned and the grounds raised for exemption, is not contemplated and the writ petitioners are attempting to mis-interpret the provisions of the CGST Act and therefore, the writ petitions are liable to be dismissed. 33. The respective learned counsel appearing on behalf of the GST, strenuously contended that the provisions of the CGST Act are unambiguous in the matter of recovery of service tax, as applicable and they relied upon the definition of 'Services' as contemplated under Section 2(102) of the Act and Section 7 along with Schedule II of the Act. 34. It is contended that Section 7 of the CGST Act, for levy and collection of tax and scope of supply is unambiguous. Accordingly, 'supply' includes, license, rental, lease or disposal made. The scope of supply contemplated under the Act is wider enough to cover the services rendered both by the Railways to their contractors as well as the contractors to the end users. 35. This apart, Section 7(1-A) of the Act, enumerates "where certain activities or trans....
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....ussed above, when the liability is unambiguous and the nature of services are also falling within the scope of Section 7 r/w Schedule II, then there is no reason to consider the claim of the writ petitioners for invoking Section 32 of the Act. 42. Section 32 deals with prohibition of unauthorised collection of tax. Here the question of unauthorised collection does not arise at all. When the collection of tax is in consonance with the provisions of the Act, the provisions of Section 32, cannot be invoked at all. Thus, the arguments with reference to Section 32 stands rejected. 43. The judgments referred to are not relatable in respect of the present transactions. The first judgment cited by the writ petitioners is of the year 1977 and the judgment in the case of Dr.Lal Path Lab Pvt Ltd vs. Commissioner of Central Excise, Ludhiana [2006 (4) STR 527 (Tri.-Del.), by the CESTAT, Principal Bench of New Delhi, was of the year 2006. The High Court of Punjab and Hariyana, confirmed the judgment of the Tribunal, in the year 2007, and the case of the Supreme Court of India in P.C.Paulose, Sparkway Enterprises vs. Commissioner of Central Excise and Customs [2011 (21) STR 353 (SC)], is of th....