TaxTMI 
TaxTMI 
2023 (12) TMI 525
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....Tax under the Club or Association Service as provided in sub-clause (zzze) of clause (105) Section 65 of the Finance Act, 1994. 2. Shri Rahul Patel, Learned Chartered Accountant appearing on behalf of the appellant submits that in their own case for the Sumel Business park -3 this Tribunal considering the identical issue has decided matter vide final order No. 12274/2023 dated 11.10.2023. Therefore, the issue is no longer res-integra, in the light of the said Tribunal order the demand is not sustainable. 3. Shri Rajesh Nathan Learned Assistant Commissioner (AR) appearing on the behalf of the revenue reiterate the finding of the impugned order. 4. On careful consideration of the submission made by both the side and perusal of record, we find that in the absolutely identical issue involved in the identical facts in the appellant's own case for a different society i.e. Sumel Business Park-3 Corporative Service Society Limited, this Tribunal vide final order No. 12274/2023 dated 11.10.2023 decided the matter in favour of the appellant, the relevant part of the order is reproduced below: "4. We have carefully considered the submission made by both the sides and perused....
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....e notice and if the allegation proceeds on the basis that Lean Gas is a by-product, then there is no question of the assessee disputing that statement made in the show cause notice. 8. We express no opinion on the merits of the question framed hereinabove. We are dismissing these appeals only on the facts of the present case and only on the ground that there is no allegation made in the show cause notice that Lean Gas is the final product." b) In the case of Precision Rubber Industries (P) Ltd. Vs. Commissioner of Central Excise (Supra) the Hon'ble Supreme Court of India has passed the following order: "11. In so far as the present appeal is concerned, it is the case of the Revenue in the show cause notices that the goods are classifiable under Chapter Heading 4016.99. Therefore, no new case could have been set up or decided contrary to the show cause notices that the goods fall under Chapter Heading 8448.00 without issuing a fresh show cause notice to the assessee in this regard. 12. In these circumstances, and following the decisions of this Court, we would have ordinarily permitted the Revenue to issue a fresh show cause notice to the assessee....
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....e foundation of the demand under the Central Excise Act and that the order-in-original and the subsequent orders passed by the appellate authorities under the statute would be confined to the show cause notice, the question of examining the validity of the impugned order on grounds which were not subject matter of the show cause notice would not arise. 10. In the aforesaid premises, in the absence of any infirmity in the findings recorded by the Commissioner or the Tribunal, there is no warrant for interference. The questions proposed by the appellant which were not subject matter of the show cause notice, do not arise out of the impugned order passed by the Tribunal. The appeal being devoid of any merit, is, accordingly, dismissed." From the above consistent view of the Apex Court and following the same by the Hon'ble Gujarat High Court, it is settled that the show cause notice is foundation of a case and any proceeding whether adjudication or appellate proceeding cannot travel beyond the show cause notice. Therefore, following the settled legal position as cited above, the demand in the present case is not sustainable on the ground that the adjudication order ha....
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....ried out by a person for another for consideration and includes a declared service but shall not include - (a) an activity which constitutes merely, - (i) a transfer of title in goods or immovable property, by way of sale, gift or in any other manner; or (ii) such transfer, delivery or supply of any goods, which is deemed to be sale within the meaning of clause (29A) of Article 366 of the Constitution; or (iii) a transaction in money or actionable claim; (b) a provision of service by an employee to the employer in the course of or in relation to his employment: (c) fees taken in any Court or Tribunal established under any law for the time being in force. xxxxxxxxxxxx Explanation 3. - For the purposes of this Chapter, - (a) an unincorporated association or a body of persons, as the case may be, and a member thereof shall be treated as distinct persons; (b) an establishment of a person in the taxable territory and any of his other establishment in a non-taxable territory shall be treated as establishments of distinct persons." From the above definition, it can be seen that the service w....
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....ssion "body of persons" occurring in the explanation to Section 65 and occurring in Sections 65(25a) and (25aa) does not refer to an incorporated company or an incorporated cooperative society. As the same expression has been used in Explanation 3 post-2012 [as opposed to the wide definition of "person" contained in Section 65B(37)], it may be assumed that the Legislature has continued with the pre-2012 scheme of not taxing members' clubs when they are in the incorporated form. The expression "body of persons" may subsume within it persons who come together for a common purpose, but cannot possibly include a company or a registered cooperative society. Thus, Explanation 3(a) to Section 65B(44) does not apply to members' clubs which are incorporated. 83. The expression "unincorporated associations" would include persons who join together in some common purpose or common action - see CIT, Bombay North, Kutch and Saurashtra, Ahmedabad v. Indira Balkrishna, (1960) 3 SCR 513 at pages 519-520. The expression "as the case may be" would refer to different groups of individuals either bunched together in the form of an association also, or otherwise as a group of persons who come t....