2016 (3) TMI 674 - HC - Service Tax

Exemption from service tax on construction service provided to in case of religious use but not to charitable purpose - Constitutionality of clause 13(c) of Notification No. 25/2012-ST, dated 20.6.2012 - It provides class legislation there being no intelligible differentia of reasonable classification in religious charitable institutes and educational charitable institutes and both registered under Section 12AA of the Income Tax Act, 1961 - Held that - a provision, statute or law shall not be declared to be unconstitutional and void solely on the ground of unjust and harsh provisions or it violates some natural, social, political or economic rights of citizen, unless it is established that such injustice infact is prohibited or violates the rights guaranteed or protected by the Constitution of India. The notification issued by the authorities by way of delegated legislation can be held to be beyond statutory competence if the power to issue the same does not emanate from the statutory provisions. Equally, it can also be struck down on the ground that it is arbitrary, unreasonable or unjust. Rather, clause 13(c) of the notification dated 20.6.2012 exempts building owned by an entity registered under Section 12AA of the Act and meant predominantly for religious use by general public from payment of service tax and is, thus, a beneficial exemption granted thereunder which cannot be said to be unconstitutional. Also it is not shown that the competent authority is not empowered to issue the impugned notification. Once there exists legislative competence in the State legislature or competent authority, in the absence of petitioner s demonstration that the enactment/provision/notification is arbitrary, discriminatory or violative of Article 14 of the Constitution of India, it cannot be declared to be unconstitutional. Therefore, clause 13(c) of Notification No. 25/2012-ST is constitutional. Decided against the petitioner

Summary

Issues:
Challenge to constitutionality of clause 13(c) of Notification No.25/2012 Service Tax dated 20.6.2012.

Analysis:
The petitioner, an association of private unaided technical institutions, challenged the constitutionality of clause 13(c) of the notification dated 20.6.2012, which imposed service tax on construction services provided to charitable educational institutes. The petitioner argued that the clause discriminated between religious and educational charitable institutes registered under Section 12AA of the Income Tax Act, 1961, without any reasonable classification. The petitioner sought a declaration that the clause was unconstitutional and a direction to exempt contractors providing construction services to the petitioner from paying indirect tax.

The notification exempted services provided by entities registered under Section 12AA of the Income Tax Act primarily for religious use by the general public from service tax. The court emphasized that a law can only be struck down if it lacks legislative competence or violates fundamental rights guaranteed by the Constitution. The court cited the principle that a law cannot be declared unconstitutional solely based on being unjust or harsh unless it violates constitutional rights. The court noted that the impugned notification was a beneficial exemption granted under legislative competence and did not violate Article 14 of the Constitution.

The court held that the notification was not beyond statutory competence and was a valid exercise of delegated legislation. The court found that the exemption provided under clause 13(c) for buildings owned by entities registered under Section 12AA of the Income Tax Act predominantly for religious use by the general public was not unconstitutional. The court concluded that since the petitioner failed to demonstrate arbitrariness, discrimination, or violation of Article 14, the petition lacked merit and was dismissed.