2010 (10) TMI 460 - AT - Service Tax

Valuation - Service tax liability - Club or association service - The membership fee (with land) collected by the appellant is towards the membership fee and towards the cost of the land - Individuals who had applied for the membership with land paying the membership fee were to be allotted land by their sister concern - If it is the contention of the appellant that the cost of the land was transferred to their sister concern M/s. Amrutha Estates for allotting the plot to members who opted for such membership (with land), then these amounts need to be excluded from the gross value for levy of service tax - The appellant has not brought on record any evidence as to the partition of the amount towards the cost of the land to their sister concern - Find that the appellant s case is on a more stronger footing, if they are able to demonstrate that the amount on which the lower authorities are seeking service tax, has been actually transferred to their sister concern, then the Board s circular would apply and binding on the Revenue officers, as has been settled by the Hon ble Supreme Court in the case of CCE, Bolpur v. Ratan Melting & Wire Industries - Hence, set aside the impugned orders and remand the matter back to the lower authorities

Summary

Issues:
Determining whether the entire membership fee (with land) collected by the assessee is chargeable to service tax, irrespective of the fact that part of the fee relates to the cost of land.

Analysis:
The case involved two appeals filed against Orders-in-Original related to service tax liabilities on membership fees. The appellant offered memberships labeled as "Membership (with land)" and was charging a fee that included the cost of land. The lower authorities confirmed demands for service tax on the entire membership fee, leading to the appeals. The appellant argued that the cost of land was transferred to their sister concern, justifying exclusion from the service tax liability. The Adjudicating Authority did not provide a factual finding on this issue, prompting the need for further examination.

The appellant contended that the membership fee collected included amounts for both membership benefits and the cost of land, which was transferred to their sister concern for land allotment. The Tribunal noted the Board's circular exempting certain amounts charged by clubs for items like food or beverages from service tax if proper documentation existed. The Tribunal emphasized the necessity to verify the transfer of land cost to the sister concern from the appellant's accounts. The case was remanded to the lower authorities for a factual determination on the transfer of land cost, emphasizing adherence to natural justice principles.

In conclusion, the Tribunal set aside the impugned orders and remanded the matter for a factual finding on the transfer of land cost, highlighting the significance of demonstrating the actual transfer to the sister concern for potential exclusion from service tax liability. The decision was based on the need for a detailed examination of the factual matrix and compliance with established legal principles.

This detailed analysis of the judgment highlights the key arguments, considerations, and the ultimate decision regarding the service tax liability on the membership fees collected by the appellant.