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TMI Blog2019 (12) TMI 1566X X X X Extracts X X X X X X X X Extracts X X X X ..... n alternate view. 3. These Writ Petitions are thus allowed in terms of my order dated 07.11.2019 in W.P. Nos.35728 to 35734 of 2016, extracted below: 'The petitioner is a dealer assessed to service tax by the respondent. The terms of employment of the petitioner company include a stipulation for a notice period prior to quitting from employment, ranging from two to three months. An option is provided to the employees to the effect that if they are not in a position to stay and serve out the notice period, then in lieu of the same, the employee will be required to pay the equivalent pay of salary for the period for which notice was not served. 2. Thus, in a case where an employee wishes to quit, it is incumbent upon the employee to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es merely,- (i) a transfer of title in goods or immovable property, by way of sale, gift or in any other manner; or (ii) such transfer, delivery or supply of any goods which is deemed to be a sale within the meaning of clause (29A) of article 366 of the Constitution; or (iii) a transaction in money or actionable claim; (b) a provision of service by an employee to the employer in the course of or in relation to his employment; (c) fees taken in any Court or tribunal established under any law for the time being in force. 6. This includes Declared Services defined in Section 66E of the Act reading thus: 66E.Declared services The following shall constitute declared services, namely:- (a) renting of immovable property; (b) co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ployer for the notice period or vice versa where the employer/employee desires an immediate exit from the organization. 8. This arrangement, the Revenue argues, would attract the provisions of Section 66E(e), whereby agreement by an entity to the obligation to refrain from an Act or to tolerate an Act or a situation, or to do not act, would constitute taxable service. According to the respondent, the petitioner has tolerated the act of immediate quitting from service, by the employees and such agreement/toleration results in the rendition of a taxable service. 9. Heard Mr.Joseph Prabakar, learned counsel for the petitioner and Mr.A.P.Srinivas, learned Senior Standing Counsel for the petitioner. 10. The provisions of Section 66E(e) app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... racted above is not attracted to the scenario before me as, in my considered view, the employer has not 'tolerated' any act of the employee but has permitted a sudden exit upon being compensated by the employee in this regard. 12. Though normally, a contract of employment qua an employer and employee has to be read as a whole, there are situations within a contract that constitute rendition of service such as breach of a stipulation of non- compete. Notice pay, in lieu of sudden termination however, does not give rise to the rendition of service either by the employer or the employee. 13. Towards conclusion Mr.Srinivas, Counsel raises the plea of availability of alternate remedy. However, since the matter involves an interpretat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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