2017 (4) TMI 1232 - HC - Service Tax

Training or coaching services - Vires of explanation added to section 65(105)(zzc) by the Finance Act 14 of 2010 dated 8th May, 2010 with retrospective effect from 1st July, 2003 - whether the amendment brought has retrospective effect or not? - case of petitioner is that the language of this explanation and particularly the words employed hereby declared would demonstrate as to how the legislature intended not to give retrospective effect to the 2010 amendment. The amendment is thus but prospective - Held that - the legislature refers to a commercial training or coaching. It means any training or coaching provided by a commercial training or coaching centre. The commercial training or coaching centre means any institute or establishment providing commercial training or coaching for imparting skill or knowledge or lessons on any subject or field other than the sports, with or without issuance of a certificate and includes coaching or tutorial classes. Once there is a power to make retrospective amendment and of the above nature, then, one cannot pick one or two words from the explanation and read them in isolation. The explanation would have to be read as a whole. So read, it clarifies the definition of the term commercial training centre or coaching . Once commercial training or coaching centre is defined and which definition is clarified by this explanation, then, the earlier views of the Benches of CESTAT would not hold the field. No assistance can be derived from the same. The service tax has to be computed, assessed and recovered in terms of the clear provisions of law and the power to levy, asses and recover is referable to the Central Excise Act, 1944. Therefore, the provisions of section 11A and its subsections and other sections of the Central Excise Act, 1944 would apply. If so applied, there is no basis for the apprehension that the tax would be recovered by extending the retrospective effect given to this explanation. The effect may be from 1st July, 2003, but to recover the tax from that date, there should be a power and there should be no fetter on that power. If there is any fetter or restriction on that power, then, that would operate. Petition dismissed - decided against petitioner.

Summary

Issues Involved:
1. Constitutionality of the explanation added to section 65(105)(zzc) by the Finance Act 14 of 2010.
2. Applicability of the explanation to the petitioner Trust.
3. Retrospective effect of the amendment.
4. Violation of Article 14 of the Constitution of India.

Issue-wise Detailed Analysis:

1. Constitutionality of the Explanation Added to Section 65(105)(zzc) by the Finance Act 14 of 2010:
The petitioner sought a writ of mandamus to declare the explanation added to section 65(105)(zzc) by the Finance Act 14 of 2010 as unconstitutional and ultra vires Article 14 of the Constitution of India. The court examined the legislative intent and the statutory provisions, concluding that the legislature had the authority to enact the amendment with retrospective effect. The explanation was meant to clarify the definition of "commercial training or coaching centre" and was within the legislative powers.

2. Applicability of the Explanation to the Petitioner Trust:
The petitioner, a Trust registered under the Bombay Public Trust Act, 1950, argued that its activities did not fall within the scope of "commercial training or coaching" as it did not operate for profit. The court noted that the explanation inserted by the Finance Act, 2010 clarified that the term "commercial training or coaching centre" includes any centre or institute providing training or coaching for consideration, regardless of its profit motive or registration status. Thus, the petitioner's activities were covered under the taxable service definition.

3. Retrospective Effect of the Amendment:
The petitioner contended that the amendment should not have retrospective effect. The court observed that the explanation was inserted with retrospective effect from 1st July 2003, and the legislature's intention was clear. The court held that the retrospective amendment was valid and did not overturn any binding judicial decision but altered the basis of the law. The court cited the Supreme Court's judgment in Commercial Tax Officer vs. M/s. Bishwanath Jhunjhunwala, emphasizing that clear legislative language must be given full effect.

4. Violation of Article 14 of the Constitution of India:
The petitioner argued that the retrospective amendment violated Article 14 of the Constitution, which guarantees equality before the law. The court rejected this argument, stating that the legislature has the power to enact retrospective amendments, especially in taxation matters, and such amendments do not inherently violate Article 14. The court emphasized that the explanation clarified the existing law and did not introduce any new discriminatory provisions.

Conclusion:
The court dismissed the writ petition, holding that the explanation added to section 65(105)(zzc) by the Finance Act 14 of 2010 was constitutional and applicable to the petitioner's activities. The retrospective effect of the amendment was valid, and there was no violation of Article 14. The court also noted that the petitioner would have opportunities to defend itself during the adjudication process and could challenge adverse orders through statutory appeals.