RELEVANCE OF PERSON IN SERVICE TAX

[Dr. Sanjiv Agarwal]

The 'person' is crucial in taxability for the purpose of Service Tax. The definition of service in section 65B(44) of the Finance Act, 1994 provides that 'service means any activity carried out by a person for another for a consideration …….'. This implies that service or activity shall be carried out by a person for another person. Thus, two persons are required to carry out any activity or transaction of service i.e., a service provider and a service receiver. If a service is provided to self and no other person is involved, it would not tantamount to service and shall, therefore, not attract Service Tax.

Meaning of Person (Clause 37 of Section 65B)

“person” includes,--

(i) an individual,

(ii) a Hindu undivided family,

(iii) a company,

(iv) a society,

(v) a limited liability partnership,

(vi) a firm,

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

(viii) Government,

(ix) a local authority, or

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

Clause 37 provides an inclusive definition of person which includes individuals, and certain specified types of entities/bodies etc. including government. The above list covers almost all types of entities and organisations as the residual entry covers the persons not covered in earlier specified types.

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’ was not defined in Finance Act, 1994 which regulates the service tax, prior to Finance Act, 2012 amendment. 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.

Following definitions and judicial interpretations can also 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, 1860 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, 1865]
• ‘Person’ includes a Hindu Undivided Family [Income Tax Act, 1961]
• ‘Person’ does not include a body of persons. [Representation of the People Act, 1950]
• ‘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, not 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) anybody 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. Punjab State, 1956 (9) TMI 57 - PUNJAB & HARYANA HIGH COURT. (Constitution of India, Art. 14The 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, 1959 (9) TMI 47 - ANDHRA PRADESH HIGH COURT. [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, 1958 (5) TMI 34 - HIGH COURT OF PATNA. [Companies Act, 1913].

‘Person’ includes a corporate body. The Collective Farming Society Ltd. v. State of MP, 1973 (10) TMI 52 - MADHYA PRADESH HIGH COURT. [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, 1947 (8) TMI 1 - MADRAS HIGH COURT.

‘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, 1960 (12) TMI 79 - GAUHATI HIGH COURT (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, 1953 (2) TMI 37 - CALCUTTA HIGH COURT.

In Jennifer Gregg and Mervyn Gregg v. CCE and C 1999 (9) TMI 943 - EUROPEAN COURT OF JUSTICE where assessee, being a firm, had a nursing home and applied for registration under Service tax law to claim input credit, which was denied on ground that its activities were exempt, but assessee argued that it was not a body/establishment, hence, exemption allowable to body/establishment could not be allowed to it, it was held that terms ‘body’, ‘establishment’ and ‘organisation’ were in principle sufficiently broad to include natural persons as well. Exemptions provided to ‘body’, ‘establishment’ and ‘organisation’ were applicable not only to legal persons, but also to natural persons. Hence, it was held that assessee was eligible for exemption and was not liable to registration.

In Larsen and Toubro Ltd. v. CCE, Vadodara-II 2013 (12) TMI 492 - CESTAT AHMEDABAD, it was held that a ‘person’ is a juristic person. To become a person, person includes an association of person or body of individuals, whether incorporated or not. It cannot be said that the units in Special Economic Zones (SEZ) and domestic tariff area (DTA) are separate persons in the eyes of law and can be considered as separate persons.

‘Person’ is not restricted to natural person. As defined in Section 65B(37) of the Act, the following shall be considered as persons for the purposes of the Act:

• an individual
• a Hindu undivided family
• a company
• a society
• a limited liability partnership
• a firm
• an association or body of individuals, whether incorporated or not
• Government (Central and State Governments, will be separate persons)
• a local authority, or
• every artificial juridical person, not falling within any of the preceding sub-clauses.

Services by Government

Most of the services provided by the Government or local authorities are in the negative list. Only those activities of Government or local authorities are taxed where they compete with private entities. The rationale is as follows-

• to provide a level playing field to private entities in these areas as exemption to Government in such activities would lead to competitive inequities; and
• to avoid break in Cenvat chain as the support services provided by Government are normally in the nature of intermediary services.

Since ‘Government’ has not been defined in the Act, the definition of ‘Government’ as contained in the General Clauses Act, 1897 would be applicable as per which ‘Government’ includes both State Government and Central Government. Further as per the General Clause Act 1897, State includes Union Territory.

‘Government’ would include various departments and offices of the Central or State Government or the U.T. Administrations which carry out their functions in the name and by order of the President of India or the Governor of a State.