2022 (12) TMI 95

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.... noted that the demand for the period 2010-2011 has been dropped. 2. The period of dispute in this appeal is from 01.04.2012 to 31.03.2013 and the issue is about levy of service tax of Rs. 54,272/- under the category of "renting of immovable property service‟ under section 65(105)(zzzz) of the Finance Act 1994 [the Finance Act]. 3. The case of the Department as set out in the show cause notice is that the appellant had provided services by way of renting out its immovable property of shops and buildings to various persons/firms/organizations for use in the course of furtherance of business of commerce and received monetary consideration on a monthly/yearly basis as per the terms of the contract/agreement but service tax was not ....

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.... legislature has used the word "shall". Therefore, when under sub-section (2) of Section 9, the word used is "may", the activities mentioned in Section 9(2)(xvii) cannot be said to be mandatory statutory duty and/or activity. Under Section 9(2), it is not a mandatory statutory duty cast upon the Market Committees to allot/lease/rent the shop/platform/land/space to the traders. Hence, such an activity cannot be said to be a mandatory statutory activity as contended on behalf of the appellants. Even the fees which is collected is not deposited into the Government Treasury. It will go to the Market Committee Fund and will be used by the market committee(s). In the facts of the case on hand, such a fee collected cannot have the characteristics ....

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....relying upon Rule 45 of the Rules, 1963 that the fees, which is collected shall be deposited with the Government Treasury and therefore also the Market Committees are exempted from payment of service tax is concerned, it is to be noted that on fair reading of Rule 45, the amount of fee so collected on such activities - rent/lease shall not go to the Government. Rule 45 provides how the money received by the Market Committees shall be invested and/or deposited. It provides that all money received by the Market Committee shall be credited to the fund called the Market Committee Fund. It further provides that all money paid into the Market Committee Fund shall be credited once a week in full into Government Treasury or sub-treasury, or a bank ....