RELEVANCE OF 'ANY PERSON' IN SERVICE TAX

[Dr. Sanjiv Agarwal]

In service tax, service provider in most of the cases is any person. The same is the case for service receiver. It is therefore, necessary to understand what 'any person' means. As the phrase it self indicates, it comprises of two terms - 'any' and 'person'

Any

The word 'any' is of great important in service tax as it makes the scope of the word or phrase with which it is used unlimited. 'Any' has been used in expressions such as any service, any person, any commercial concern, any amount etc.

'Any' means one or more out of several and also includes all. The word 'any' means all. It has a very wide spectrum. It connotes wide generality. The use of word 'any' in service tax context indicates that it has been used in wider sense extending from one to all. It excludes any limitation or qualification and refers to as wide as possible in the given context. For example, if the context is person, than any person would mean any of the persons but the object must be a person. If it is any two, then only two out of the entire lot of such persons would qualify.

According to Black's Dictionary, the word 'any' has the following meaning — some, one out of many; an infinite number, one indiscriminately of whatever kind or quantity; or may be employed to indicate 'all' or 'every' as well as 'some' or 'one'. It is often synonymous with 'either' 'every' or 'all' — extracted from Black's Dictionary, Fifth Edition.

It also means some; one out of many; an indefinite number. One indeterminately of whatever kind or quantity. 'Any' does not necessarily mean only one person, but may have reference to more than one or to many word 'any' has a diversify of meaning and may be employed to indicate 'all' or 'every' as well as 'some' or 'one' and its meaning in a given statute depends upon the context and the subject matter of the statute. It is often synonymous with 'either', 'every', or 'all'. Its meaning generally may be restricted by the context' thus, the giving of a right to do some act 'at anytime' is commonly constructed as meaning within a reasonable time; and the words 'any other' following the enumeration of particular classes are to be read as 'other such like', and include only others of like kind or character. Black's Dictionary, Sixth Edition.

Any Person

The term 'person' would include all persons - natural and juristic, i.e., artificial persons created by an act of law such as hindu undivided family, company, corporation, cooperative society, registered firm, trust, government agencies etc, whether engaged in commercial activity or not. The term 'person' has also not been defined by Finance Act, 1994 which regulates the service tax. Under section 3(42) of General Clauses Act, person includes any company or association or body of individuals, whether incorporated or not. Also, a person is any being in existence, whom the law regards as capable of rights and duties. Any such being shall be a person.

The term 'any person' will not include a stranger but he should be a related person in the given context. Any person is a term of wider application and include one or all persons. 'Any person' does not limit but is wide enough to cover an application by persons other than natural ones also. Persons would include natural as well as artificial or juristic persons. The words any persons or 'class of persons' are very general and include not only natural person but also juridical person in whatever form designated and whether incorporated or not. By implication, state stands excluded. Any person includes a corporation.

Following definitions and judicial interpretations can be referred to understand the meaning of 'person' —

According to Black's Dictionary, person means a human being, an entity (such as corporation that is recognised by law as having the rights and duties of a human being and living body of a human being.

According to General Clauses Act, it means a legal entity that is recognised by law as the subject of rights and duties, an individual.

The word 'person' includes any company or association or body of persons, whether incorporated or not. [Indian Panel Code and General Clauses Act,].

The word 'person' shall include a company or corporation. [Police Act, 1861].

'Person' includes any association or body of persons, whether incorporated or not. [Carriers Act]

'Person' includes a Hindu Undivided Family [Income Tax Act]

'Person' does not include a body of persons. [Representation of the People Act]

"Person' means any individual or partnership or any public or private body , whether corporate or not, including a state or any of its constituent sub-divisions. [Merchant Shipping Act, 1958]

'Person' includes—

(i) an individual,

(ii) a Hindu Undivided Family

(iii) a company

(iv) a firm

(v) an association of persons or body of individuals, whether incorporate or not,

(vi) a local authority, and

(vii) every artificial juridical person, not falling within any of the preceding sub-clauses. [Income Tax Act]

'Person' includes—

(i) a firm whether registered or not

(ii) a Hindu Undivided Family

(iii)  a cooperative society

(iv)  every other association of persons whether registered under the Societies Registration Act, 1860, or not. [Consumer Protection Act, 1986]

'Person' includes—

(i) an individual

(ii) a Hindu Undivided Family

(iii) a company

(iv) a firm,

(v) an association, of person or a body of individuals, whether incorporated or not, and

(vi) every artificial juridical person, not falling within any of the preceding sub-clauses, but does not include a local authority. [Voluntary Deposits (Immunities and Exemptions) Act, 1991]

'Person' means—

(i) an individual who is a citizen of India

(ii) an association of individuals or body of individuals, whether incorporated or not, whose members are citizens of India

(iii) a company in which not less than fifty one per cent of the paid up share capital is held by the citizens of India, [Cable Television Networks (Regulation) Act, 1995]

'Person' includes—

(i) an individual

(ii) a Hindu Undivided Family

(iii) a company

(iv) a firm

(v) an association of persons or a body of individuals, whether incorporated or not

(vi) a local authority

(vii) every artificial juridical person, no falling within any of the preceding sub-clauses

(viii) assessee, as defined in Rules 2 of Central Excise Rules, 1944

(ix) exporter as defined in clause (20) of section 2 of the Customs Act, 1962

(x) importer as defined in clause (26) of section 2 of the Customs Act, 1962

(xi)  any person against whom proceedings have been initiated and are pending under any direct tax enactment or indirect tax enactment, [Finance Act, 1998]

'Person' includes —

(i) an individual

(ii) a Hindu Undivided Family

(iii) a company

(iv) a firm

(v)   an association of persons or a body of individuals, whether incorporated or not, in India or outside India

(vi) any corporation established by or under any Central, State or Provincial Act or a Government company as defined in section 617 of the Companies Act, 1956

(vii) any body corporate incorporated by or under the laws of a country outside India

(viii) a co-operative society registered under any law relating to co-operative societies

(ix) a local authority

(x) every artificial juridical person, not falling within any of the preceding sub-clauses. [Competition Act, 2002]

Person' includes —

(i) an individual

(ii) a Hindu Undivided Family

(iii) a company

(iv) a firm

(v) an association of persons or a body of individuals, whether incorporated or not

(vi) every artificial juridical person not falling within any of the preceding sub-clauses, and

(vii) any agency, office or branch owned or controlled by any of the above persons mentioned in the preceding sub-clauses; [Prevention of Money Laundering Act, 2003]

So far as legal theory is concerned, a person is any being whom the law regards as capable of rights and duties. Any being that is so capable is a person, whether a human being or not, and no being that is not so capable is a person, even though he be a man. Persons are the substances of which rights and duties are the attributes. It is only in this respect that persons posses juridical significance, and this is the exclusive point of view from which personality receives legal recognition. [John Salmond, Jurisprudence 318 (Glanville L. Williams ed., 10th edition 1947)]

The natural and obvious meaning of the expression 'person' is a living human being, a man, woman or child, an individual of the human race. As used in law the word includes natural persons and artificial persons like corporations and point stock companies, but it does not include a state or Government. [Shiv Prashad v. PunjabState, AIR 1957 Punjab 150, 151. (Constitution of India, Art. 14)]

The word, person means not duly a natural person, but also a jurisdic or artificial person, Rahmat v. Mandir Shri Laxminiaram, AIR 1976 MP 216, 218. [Madhya Pradesh Land Revenue Code 1859].

The expression 'person' as defined in Section 3(42) of the General Clauses Act (10 of 1897) includes a company or association or body of individuals whether incorporated or not, but the expression 'person' cannot be detached from the context and viewed apart from the nature of the writs that are enumerated in the article. In Re v. S. Hariharan, AIR 1960 AP 518, 519. [General Clauses Act, 1897].

The word 'person' has not been defined in the Companies Act. It may be that the word comprises a number of individuals, such as a hindu joint family. The question whether a syndicate of ten persons was really composed of more than twenty persons is a question of fact to be decided on the evidence and not on a mere allegation. AIR 1930 Bombay 431.

The word 'person' as understood in its ordinary sense generally implies a natural person and not a person artificial unless there is a provisions made for it either expressly or by necessary implication. Nand Prasad v. Arjun Prasad, AIR 1959 Pat 293, 300. [Companies Act, 1913]

'Person' includes a corporate body. The Collective Farming Society Ltd. v. State of MP, AIR 1974 AP 59, 67 (FB). [Madhya Pradesh Co-op. Societies Act, 1961] a corporate body like a club registered under Societies Registration Act is a 'person' within the meaning of Section 3, Madras Gaming Act. In Re Somasundaram Chettiar, AIR 1948 Mad 264, 265.

'Person' in the technical or legal sense can be a natural person like a human being or an artificial person like the holder of an office or a corporation. Jagneshwar Sen Gupta v. Bimal Kantipaul, AIR 1961 Tri 52, 54. (Tripura Municipal Act, 1349]

The words 'a person' must be taken to include a group of persons who are in joint possession. If two persons are in joint possession over twice the maximum quantity prescribed, they become liable for contravention of the order and they cannot set up the fiction of being in separate possession of half the quantity each. Anil Kumar Samanta v. State, AIR 1953 Cal 476, 477.

For the purpose of service tax, any person would, therefore, include all persons, natural and juristic, commercial or non-commercial entities including public sector enterprises .