TaxTMI 
TaxTMI 
2023 (2) TMI 833
X X X X Extracts X X X X
X X X X Extracts X X X X
....e tax from the petitioner by the respondents herein for the payment of license/rental fee paid by the petitioner to the fifth respondent herein as unconstitutional, and ii. Writ of Mandamus to forbear the respondents, their men, agents, sub-ordinates or anyone claiming under them from in any manner imposing, levying, demanding or collecting service tax from the petitioner towards the rent/license fee paid by the petitioner to the fifth respondent other than by authority of law. 2. When this case was taken up for hearing, it was informed that the Registry vide its Roc.No.104/2011 (Writs), dated 14.07.2011 has transferred the original records in respect of W.P.Nos.23431, 41293, 47104 to 47106 & 39719 of 2006 and 1479 of 2007 to the Delhi High Court pursuant to the order dated 11.04.2011 of the Hon'ble Supreme Court in Transfer Petition (Civil) No.236 of 2007. However, W.P.Nos.45029 & 1479 of 2006 could not be transferred, since they had already been disposed of. 3. Apart from the above, vide letter dated 15.07.2011, the Registry of this Court has also transferred the records of W.P.No.21700 of 2007 to the Delhi High Court pursuant to the direction of the Hon'ble Suprem....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... ii. Sahara Airlines Limited. Vs. Union of India, in W.P.(C) No.7145 of 2011 passed by the Bombay High Court. iii. CCE. Vs. Cochin International Airport, 2011 (24) STR 20 (Ker). 9. It is further submitted that from 01.06.2007 to 01.07.2010, Section 65(105)(zzzz) and Section 65(90a) of the Finance Act, 1994 (Chapter V - Service Tax) were in force, whereby, the letting out of property became exigible to service tax. Also, during this period, the proviso to Section 65(105)(zzm) of the Finance Act, 1994 (Chapter V - Service Tax) had not been introduced. Further, it is submitted that Section 65A would be only applicable for services rendered within Airport/Civil Enclave. 10. It is submitted that Section 65(105)(zzzz) of the Finance Act, 1994 (Chapter V - Service Tax) was more specific. Section 65(105)(zzm) of the Finance Act, 1994 (Chapter V - Service Tax) was not applicable to renting of space in Airport/Civil Enclave between 10.09.2004 to 01.06.2007. This view has been taken by the Hon'ble Delhi High Court in Airport Retail Pvt. Limited Vs. Union of India, 2014 (35) STR 659 (Del). 11. It is submitted that the above judgment was taken up on appeal and upheld by th....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... person, by Airports Authority or any person authorized by it, in an airport or a civil enclave. It is thus crystal clear that the appellant being a person authorized by AAI to provide service in express terms and conditions, it becomes liable to pay such tax as it was an authorized person to provide taxable service and collect the admission ticket charges on a contract basis." 17. By way of rejoinder, the learned counsel for the petitioner would submit that the decision of the Hon'ble Supreme Court in the above case cannot be applied to the facts of the case. It is submitted that a dispute in the said case was confined to an agreement entered into between Airport Authority of India and the appellant therein. 18. By virtue of Agreement, the appellant therein was entrusted with the responsibility and the activity of collecting Airport admission ticket charges on behalf of the Airport Authority India Limited at Karipur Airport, Calicut. 19. We have considered the arguments advanced by the learned counsel for the petitioner, the learned Senior Standing Counsel for the first to third respondents and the learned counsel for the fourth to sixth respondents. 20. By Finance (No....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s, provision as in force from 10.09.2004 to 30.06.2010 and from 01.07.2010 to 30.06.2012 read slightly different. 24. For a better understanding of the dispute in the present Writ Petition, both the definitions as it stood introduced with effect from 10.09.2004 and as it stood substituted with effect from 01.07.2010 are reproduced below in a Table:- As introduced by Finance (No.2) Act, 2004, with effect from 10.09.2004 As substituted by Finance Act, 2010 with effect from 01.07.2010 vide Notification No.24/2010-ST, dated 22.06.2010. Section 65 Definitions:- (1) ............ .............. (105) (105) "taxable service" means any service provided or to be provided (a)........ ............ (zzm) to any person, by airports authority or any person authorized by its, in an airport or a civil enclave; (zzm) to any person, by airports authority or by any other person, in any airport or a civil enclave: Provided that the provisions of Section 65A shall not apply to any service when the same is rendered wholly within the airport or civil enclave; 25. A reading of the definition of "taxable service in Section 65(105)(zzm) during the period with effect fro....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ces in Section 65(105)(zzm) of the Finance Act, 1994 (Chapter V - Service Tax) with effect from 01.07.2010. 28. The renting of immovable property which was brought within the purview of service tax net vide Finance Act, 2007, with effect from 01.06.2007 introduced the definition of "renting of immovable property" in Section 65(90a) of the Finance Act, 1994 (Chapter V - Service Tax) to read as under:- "65. Definitions:- (1).......... .............. (90a) "renting of immovable property" includes renting, letting, leasing, licensing or other similar arrangements of immovable property for use in the course or furtherance of business or commerce but does not include: i. renting of immovable property by a religious body or to a religious body; or ii. renting of immovable property to an educational body, imparting skill or knowledge or lessons on any subject or field, other than a commercial training or coaching centre; * [Explanation 1] : For the purposes of this clause, "for use in the course or furtherance or business or commerce" includes use of immovable property as factories, office buildings, warehouses, theatres, ex....
X X X X Extracts X X X X
X X X X Extracts X X X X
....) land used for educational, sports, circus, entertainment and parking purposes; and (d)building used solely for residential purposes and buildings used for the purposes of accommodation, including hotels, hostels, boarding houses, holiday accommodation, tents, camping facilities. (v) vacant land given on lease or license for construction of building or temporary structure at a later stage to be used for furtherance of business or commerce; * Explanation 2.- For the purposes of this sub-clause, an immovable property partly for use in the course or furtherance of business or commerce and partly for residential or any other purposes shall be deemed to be immovable property for use in the course or furtherance of business or commerce." * Sub Clause (v) of Explanation 1 was inserted by Finance Act, 2010 (14 of 2010) dated 08.05.2010, w.e.f. 01.07.2010 vide Notification No.24/2010-ST, dated 22.06.2010. 30. The above proviso to Section 65(105)(zzm) of the Finance Act, 1994 (Chapter V - Service Tax) merely clarified that renting of space within Airport was to be continued to be governed by Section 65(105)(zzm) of the Finance Act, 1994 (Chapte....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o tax or not is to be determined by the Authorities enforcing the provisions of the Finance Act, 1994. 37. If any proceeding(s) was/were initiated by the statutory Authority, it is open for the fourth respondent to rely upon the above Circular No.80/10/2004-ST, dated 17.09.2004 issued by the Central Board of Excise and Customs before the said Authority as such Circulars are only binding on the Authorities [see Collector of Central Excise, Vadodra Vs. Dhiren Chemical Industries, (2002) 2 SCC 127 : 2001 SCC OnLine SC 1447] though not binding on the Courts as held by the Hon'ble Supreme Court in the case of M/s Ratan Melting & Wire Industries referred to supra. 38. The present Writ Petition to scuttle any assessment and adjudication proceedings and proposal to pass on incidence of service tax on the petitioner by the Airport Authority of India namely, the fourth respondent cannot be countenanced. 39. It is preemptory move in an anticipation of steps that would have been taken by the Airport Authority of India by passing on the incidence of service tax in terms of Section 65(105)(zzm) of the Finance Act, 1994 (Chapter V - Service Tax) as it stood with effect from 10.09.2004. ....