2010 (12) TMI 49 - HC - Service Tax

Renting of immovable property - retrospective amendment - constitutional validity - Held that - Interim order (stay) passed on earlier occasions shall remain in force

Summary

Issues:
Challenge to the validity of Section 65(90a) read with Section 65(105)(zzzz) of the Finance Act, 1994 as ultra vires the Constitution of India. Interpretation of whether renting of immovable property for use in the course or furtherance of business or commerce constitutes a taxable service under the service tax regime.

Analysis:
The batch of writ petitions challenges the constitutionality of Section 65(90a) read with Section 65(105)(zzzz) of the Finance Act, 1994, as amended by subsequent Finance Acts, alleging a colorable exercise of power beyond legislative competence. The petitioners argue that the amendment broadening the scope of service tax to cover mere renting of immovable property lacks legal basis, contending that the original provision required a connection to business or commerce for taxation. Reference is made to the decision in Home Solution Retail India Ltd. Vs. UOI & Ors, emphasizing the value addition aspect of service tax and the necessity for a service-provider relationship in the context of renting immovable property.

The analysis delves into the interpretation of Section 65(105)(zzzz) concerning services related to renting immovable property for business or commerce. It is highlighted that for a service to be taxable, there must be a discernible value addition, which is lacking in the act of renting immovable property itself. The judgment emphasizes that service tax is a tax on value addition by service providers, indicating that standalone renting of immovable property does not inherently involve value addition and, therefore, should not be considered a taxable service. The discussion underscores the distinction between services that involve value addition, like air conditioning services, alongside renting immovable property, and the renting itself, which is deemed not to add value independently.

The legal arguments presented draw heavily from the interpretation of the Home Solution case, where it was concluded that renting immovable property for business or commerce does not inherently constitute a taxable service due to the absence of value addition. The debate extends to the binding nature of the Home Solution judgment on subsequent cases, with differing views on its precedential value. The ongoing legal challenge at the Apex Court level regarding the Home Solution decision and its implications on the interpretation of service tax laws further complicates the matter, prompting a call for expeditious resolution of the legal disputes surrounding the taxation of renting immovable property.

In light of the complex legal arguments and the pending challenges at higher judicial levels, the High Court decides to adjourn the matters for further deliberation, maintaining the interim orders until the next hearing scheduled for January 25, 2011. The legal discourse surrounding the taxation of renting immovable property for business or commerce underscores the nuanced interpretation of service tax laws and the ongoing judicial scrutiny of legislative amendments impacting the scope of taxable services under the Finance Act, 1994.