2015 (4) TMI 497 - HC - Service Tax

Renting of immovable property services - Jurisdiction of central government to levy service tax - Petitioner being Department of State Government discharge sovereign functions - Held that - by virtue of Entry 35 read with Entry 18 List II of the Constitution of India, leasing of property is a subject under the State List, and therefore, only the State legislature would have the power to legislate in respect of the said subject, I note that the said entries do not deal specifically with levy of a tax on renting of immovable property services. It is not in dispute that the legislative sanction for the levy of a service tax on renting of immovable property services is traceable to Entry 97 of List I of the Constitution of India. That being so, and there being no specific entry dealing with the subject of service tax in any of the other lists in the 7th Schedule to the Constitution of India, the competence of the Parliament to legislate in respect of service tax on renting of immovable property services cannot be called in question. Thus, as far as the applicability of the Finance Act, 1994, as amended is concerned, it would apply even in respect of services rendered by a State Government, unless the services fall under the negative list of services under the Statute. Thus, in the instant case, there is no ground to infer that, in passing Ext.P7 order, the respondents were acting under any jurisdictional error in confirming a demand of service tax on the petitioner in respect of the services rendered by the petitioner pursuant to Exts.P1 and P1(a) orders. - Decided against assessee.

Summary

Issues:
Challenge against Ext.P7 order of assessment confirming service tax and penalty on the petitioner, a department of the State Government, based on jurisdiction and taxation of services rendered in the course of sovereign functions.

Analysis:

1. Jurisdiction of 2nd respondent to pass Ext.P7 order:
The challenge in the writ petition revolves around the jurisdiction of the 2nd respondent to confirm a demand of service tax and penalty on the petitioner, a State Government department. The petitioner argues that being a department of the State Government, it cannot be subjected to service tax as the services rendered are in the course of discharging sovereign functions. The contention is that leasing of property falls under the State List, and only the State Legislature can levy a tax on such services. However, the Court notes that the legislative sanction for service tax on renting of immovable property services is under Entry 97 of List I of the Constitution, giving Parliament the competence to legislate on this matter. The definition of "person" in the Finance Act includes "Government," making it applicable even to services rendered by a State Government unless falling under the negative list of services.

2. Applicability of Finance Act, 1994 to State Government services:
The petitioner argues that services rendered fall under the negative list of services under Section 66 B of the Finance Act, 1994. However, this argument was not raised before the 2nd respondent during the proceedings leading to Ext.P7 order. The Court directs the petitioner to file an appeal before the CESTAT to raise this point, as it is an alternate remedy available under the Finance Act.

3. Requirement of pre-deposit for appeal before CESTAT:
A further contention raised by the petitioner is the requirement of pre-deposit of 7.5% of the tax amounts confirmed against them for maintaining an appeal before the CESTAT, as per an amendment in the Finance Act, 1994. The Court clarifies that appeals filed prior to the amendment will be governed by the provisions before the amendment. The petitioner is granted a stay on recovery proceedings for one month to file an appeal with an application for waiver of pre-deposit, ensuring the appeal is considered under the pre-amendment provisions of the Act.

In conclusion, the judgment upholds the jurisdiction of the 2nd respondent to confirm the demand of service tax on the petitioner, a State Government department, based on the legislative competence of Parliament to levy such taxes. It directs the petitioner to pursue the alternate remedy of filing an appeal before the CESTAT to raise specific arguments not addressed in the initial proceedings. The Court also provides clarity on the application of pre-deposit requirements for appeals in light of recent amendments to the Finance Act, 1994.