9911796707
TMI Blog2020 (5) TMI 224X X X X Extracts X X X X X X X X Extracts X X X X ..... ubstantial questions of law: "1) Whether the principle of mutuality is applicable to services provided by the club to its members and do not amount to rendition of service from one person to another and would not be considered as taxable service for the purpose of levy of service tax? 2) Whether under the facts and circumstances of the case, the CESTAT is right in holding that the services are not taxable on the principle of mutuality of overriding the statutory provisions contained in Section 65(105)(zzze) and 65(25)(aa) of the Finance Act, 1994? 3) Whether under the facts and circumstances of the case, the activities of club amount to service provided to the members and liable for service tax?" 2. We have heard the arguments of Sri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 6.1.2015 and 11.2.2015 respectively, on the ground that the issue as to whether the services provided by a club to its members are liable to service tax under the category "Club or Association Service" was no more res integra, in the light of the decisions rendered by Jarkhand and Gujarat High Courts, which had been followed by the Tribunal in M/s. Enchanted Woods Club Ltd., Vs. CCE,Ludhiana reported in 2014-TIOL-849-CESTAT-DEL. 5. Sri.Jeevan.J.Neeralgi, learned counsel appearing for the appellant would vehemently contend that CESTAT had failed to appreciate that clubs are either incorporated under the Companies Act or registered under the Societies Registration Act, which would constitute separate legal entity or in other words, having ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that anybody "established or constituted" by or under any law for the time being in force, is not included. Shri Dhruv Agarwal laid great emphasis on the judgments in DALCO Engineering Private Limited v. Satish Prabhakar Padhye, (2010) 4 SCC 378 (in particular paragraphs 10, 14 and 32 thereof) and CIT, Kanpur v. Canara Bank, (2018) 9 SCC 322 (in particular paragraphs 12 and 17 therein), to the effect that a company incorporated under the Companies Act cannot be said to be "established" by that Act. What is missed, however, is the fact that a Company incorporated under the Companies Act or a cooperative society registered as a cooperative society under a State Act can certainly be said to be "constituted" under any law for the time being in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h may have come into existence earlier by an oral agreement, but the terms and conditions of the partnership have subsequently been reduced to the form of a document. If we construe the word "constitute" in the larger sense, as indicated above, the difficulty in which the learned Chief Justice of the Calcutta High Court found himself, would be obviated inasmuch as the section would take in cases both of firms coming into existence by virtue of written documents as also those which may have initially come into existence by oral agreements, but which had subsequently been constituted under written deeds." 82. It is, thus, clear that companies and cooperative societies which are registered under the respective Acts, can certainly be said to ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
