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TMI Blog2012 (3) TMI 283X X X X Extracts X X X X X X X X Extracts X X X X ..... ive societies are managed by simplified controls through different enactments does not mean that for taxing the services such societies would be on a different footing as compared to services provided by a company - Since no specific exclusion is made in Finance Act, 1994,bank run by a co-operative society will come within the scope of entry 65 (105) (zm) and 65 (12) during the relevant time- since adjudication order has imposed both penalty under section 76 and section 78 the penalty under section 76 was uphold and set side penalty under section 78 - Appeals of assess were rejected on the issue of liability for tax and held the society to pay tax. - ST/Appeal Nos.136-138/2008 - ST/A/85-87/2012-CUS - Dated:- 25-1-2012 - Archana Wadhwa, Mathew John, JJ. For Appellant: Shri K C Moondra, CA For Respondent: Shri Sonal Bajaj, DR Per: Mathew John: There are three appeals being decided in this proceeding. The Appellants are a co-operative society and they provide banking services. The issue in dispute is taxability of service rendered by the Appellant under the head for Banking and Other Financial Services as defined under section 65(12) of Finance Act, 1994. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hange broking provided by a foreign exchange broker, other than those covered under sub-clause (a); 3. The Short point for decision in these appeals is whether a co-operative society is covered by the expression or any other body corporate, or any other person used in sub-section 65 (105) (zm) and sub-section 65 (12). 4. The Appellants rely on the section 2 (7) of the Companies Act 1956 which reads as under: (7) body corporate or corporation includes a company incorporated outside India but does not include- (a) a corporation sole; (b) a co-operative society registered under any law relating to co-operative societies; and (c) any other body corporate (not being a company as defined in this Act) which the Central Government may by notification in the Official Gazette specify in this behalf; 5. So it is argued that a co-operative society cannot be considered as a body corporate for the purpose of section 65 (105) (zm) and 65(12). 6. The next argument is that a co-operative society cannot come within the meaning of the expression any other person used in 65 (105) (zm) because of two reasons namely ,- (a) co -operative societies ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e remained outside the scope of section 65 (105) (zm). If there is an expression which can otherwise cover co-operative societies it would be get covered. So the real point to be examined is whether the expression any other person can bring in co-operative society. None of the case laws relied upon by the A.R for Appellant deals with a situation where an expression used in one Act was used in another Act and the expression was supplemented by an expression like any other person . 10. Now the issue to be examined is whether co-operative society would be covered by any other person . Here the argument is that co-operative society is not of the same genus as a company. This is not correct. The very fact that section 2 (7) of the Companies Act specifically excluded co-operative society shows that in many respects co-operative society is of the same genus as a company. It was necessary to keep the co-operative society out of the many controls of the Companies Act. So it is specifically excluded though both are of the same genus. The fact that co-operative societies are controlled not by the elaborate procedure of companies Act but by similar but simplified controls through d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itutions. 4. Hence, banking and other financial services provided by a banking company or a financial institution or a non-banking financial company or any other service provider similar to a bank or a financial institution are liable to service tax under section 65(105)(zm) of the Finance Act, 1994. Department of Posts is not similar to a bank or a financial institution and hence does not fall within the category of any other similar service provider. 5. In view of the foregoing, it is clarified that services such as transfer of money through money orders, operation of savings accounts, issue of postal orders provided by the Department of Posts are not liable to service tax under section 65(105)(zm) read with section 65(12) of the Finance Act, 1994. . 13. A clarification that a post office is of a different class in the matter of providing certain services, provided also by banks, cannot lead to a conclusion that a co-operative society is also of a different class in the matter of services of the nature of banking and financial services. In the first place post office works directly under Department of Posts of Government of India. Secondly Department of posts re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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