TaxTMI 
TaxTMI 
2025 (6) TMI 764
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.... Rent Hoarding and Royalty Income for the FY 2008-09 to 2012-13 under Renting of Immovable Property Service provided to M/s. Calcutta Street Advertising Pvt. Ltd. and M/s. Ganesh Departmental Stores. In this regard, the Appellant has paid the Service Tax Liability of Rs. 2,40,900 in respect of M/s. Ganesh Departmental Stores which was ordered to be appropriated. iii. Service Tax liability of Rs. 2,49,342 was confirmed in respect of Advertising Agency Service provided by the Appellant by way of display of advertisements/banners. 3. In respect of the confirmed demand on account of Restaurant Service, the arguments of the Ld Consultant is as under : 3.1 The Appellant submits that the primary objective of the club is to provide its members with privileges, advantages, conveniences, and accommodations of a club. The facilities of the club are exclusively for its members, their spouses, and guests accompanied by members. No outsider is permitted to use the club's facilities. No person other than a member or guest accompanied by a member or his/herspouse can use the facilities of the club. No outsider is permitted to use the facilities of the club. 3.2 The Appellant subm....
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....not separate places but are situated with the same area of the club premises where only the members can enter and no outsider is permitted to enter in those places. Therefore, the Appellant club cannot be taxed under the category of Restaurant Service. 3.6 The Appellant submits that service tax levy applies only to proprietary restaurants where food and/or beverages are provided by the proprietor carrying on business to customers at his public eating place for consideration, intending to make a profit. The proprietor of a restaurant deals with the customers as a principal contracting party and the proprietor is an entity separate and distinct from the customers. 3.7 The Appellant submits that the Appellant is not a "club or association" or "restaurant" within the meaning of the Act and was and is not liable to obtain registration thereunder or pay any tax or file any return or comply with any other formality. The Appellant is a members' club and is outside the purview of the Act. 3.8 The Appellant submits that each member of the club is a member of the company and each member of the company is a member of the club and there is complete identity between the members of the c....
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....lub as per the approved menu and rate duly approved by the club. Therefore, it is amply clear that the Appellant was not engaged in any commercial activity with the objective of earning profit within the club premises by taking the place on rent and by selling of food to any outsider as claimed by the department. Instead, M/s. Asotor is cooking and supplying the cooked food to the club members onlyas per the approved menu and rate duly approved by the club. 4.3 The Appellant further submits that for renting there must be a fixed sum of rental to be given by the tenant to the landlord. In the instant case, the Appellant is not at all acting as a landlord, but taken the services of M/s. Astor for preparation, supply and service of cooked food to its members only. The 20% margin the Appellant earns, is for meeting its other expense and the corresponding direct expense for cost of food at 80% paid to M/s. Astor is for supply of cooked food to its members. In effect, the Appellant is supplying cooked food to its members by using M/s. Astor and paid M/s. Astor 80% of the value of the food so charged to the members. 4.4 The Appellant, in this regard, has relied upon the judgment of ....
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....ome taxable, the service must be provided by an advertising agency. Further, the definition of advertising agency is provided in Section 65(3) of the Finance Act, 1994 which reads as below: ""Advertising agency" means any person engaged in providing any service connected with the making, preparation, display or exhibition of advertisement and includes an advertising consultant." 6.4 Further in Section 65(2) of the Finance Act, 1994 the definition of advertisement is given as below: "advertisement" includes any notice, circular, label, wrapper, document, hoarding or any other audio or visual representation made by means of light, sound, smoke or gas;" 6.5 In this regard, the Appellant submits that they are not engaged in the business of providing services as defined in Section 65(3) of the Finance Act,1994. The core activity of the Appellant club is to provide usual club facilities to its members. In order to provide amusement facilities to members, the Appellant used to arrange different events/functions where only members and guests accompanied by members can participate and enjoy. In the said events, different business entities can display their advertisem....
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....he concept of suppression amounts to that which one is legally to state but one intentionally or deliberately or consciously does not state. In other words, the term "suppression' includes a mental element to deliberately omit to state certain thing. It was therefore, held that the extended period of limitation is inapplicable in absence of suppression of facts and hence, absence of an intent to evade payment of duty. The same principle was also upheld by the Hon'ble Supreme Court in the case of Pushpam Pharmaceuticals Company Vs. CCE [1995 (78) ELT 401 (S.C.)] 8. In view of the above submissions, the Ld Consultant prays that the appeal may be allowed as per their prayer both on merits as well as on account of limitation. 9. The Ld A R appearing for the Respondent Revenue, reiterates the detailed findings of the Adjudicating authority wherein after proper verification of the documentary evidence placed before him and the statutory provisions, he has dropped a portion of the demand and has confirmed the demands discussed above. He submits that it is on record that the appellants were running various Restaurants within the Calcutta Club premises with all the facilities given by....
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....ere is no sale by one person to another for consideration, as one cannot sell something to oneself. This would apply on all fours when we are to construe the definition of "service" under Section 65B(44) as well. 77. However, Explanation 3 has now been incorporated, under sub- clause (a) of which unincorporated associations or body of persons and their members are statutorily to be treated as distinct persons. 78. The Explanation to Section 65, which was inserted by the Finance Act of 2006, reads as follows : "Explanation. - For the purposes of this section, taxable service includes any taxable service provided or to be provided by any unincorporated association or body of persons to a member thereof, for cash, deferred payment or any other valuable consideration." 79. It will be noticed that the aforesaid explanation is in substantially the same terms as Article 366(29A)(e) of the Constitution of India. Earlier in this judgment qua Sales Tax, we have already held that the expression "body of persons" will not include an incorporated company, nor will it include any other form of incorporation including an incorporated cooperative society. ....
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....viduals either bunched together in the form of an association also, or otherwise as a group of persons who come together with some common object in mind. Whichever way it is looked at, what is important is that the expression "body of persons" cannot possibly include within it bodies corporate. 12. In the present case, there is no dispute that the appellant is an incorporated Public Limited Company. The factual details clarify that the facilities are meant purely for the usage of its members. In the Restaurants run within the Club, only the Members get access to the facilities of food, beverages. They may bring in their own guests as per the rules of the club. But the Bills are raised only the Members who are liable to pay the amount in question. Thus it is clear the facilities are not open to general public and cannot be used any person other than a person who is the Member of the club. 13. The Hon'ble Supreme Court has considered in detail the amendments brought in with effect from 1.7.2012 and has come to a conclusion that even after this date, in case of services provided by an incorporated body to their members, the same would not be liable for any Service Tax for the se....
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....August,2007 has clarified as under : "Merely canvassing advertisements for publishing, on commission basis, is not classifiable under the taxable service falling under section 65(105)(e).Such services are liable to service tax under business auxiliary service *section 65(105)(zzb)+" 18. In the present case, if any Adverisement is published in the souvenir, or any display is carried out in the Club premises, that in itself cannot make the appellant liable for payment of Service Tax. Therefore, we set aside the confirmed demand of Rs.2,49,342. 19. Coming to the confirmed demand on account of the rental services rendered by the appellant, it is seen that the appellant is not contesting the same. They have paid the same along with interest and requisite penalty. They seek partial refund of the same on the ground that they have not charged the Service Tax on the lessee and hence they should be given the cum-tax benefit in terms of Section 67(2) of the Finance Act 1994. We find that in case of one party, they have admitted that they have charged the Service Tax and hence paid the Service Tax on 2,40,000 before Adjudication. Hence, if they have charged the Service Tax on th....