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TMI Blog2022 (2) TMI 1154X X X X Extracts X X X X X X X X Extracts X X X X ..... to pronounce advance ruling as it falls under the ambit of the Section 97(2) (e) given as under: (e) determination of liability to pay tax on any goods or services or both. A. SUBMISSION AND INTERPRETATION OF THE APPLICANT: * The applicant is a club which is engaged in providing various services such as short term accommodation, restaurant, recreational services and is having GST registration number 08AAABU0007F1ZZ. The applicant intends to seek clarification on the applicability of GST on various services provided by club to its members in light of recent decision given by the Hon'ble Supreme Court in the case of state of west Bengal & others vs Calcutta Club Limited in civil appeal No. 4184 of 2009. * The landmark decision given by the apex court is applicable for the erstwhile service tax era but since the provisions in GST laws are similar, the ratio given by the Apex Court would be applicable for GST regime too. * Therefore, the present application for advance ruling is being filed to confirm the applicability of GST on services provided by club to its members in light of the decision given by the Apex Court. * The analysis of the decision of the Hon'ble Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the supply of goods by any unincorporated association or body of persons to a member thereof for cash, deferred payment or other valuable consideration. The Supreme Court analysed the term "body of persons" in detail in the judgment of Calcutta Club Ltd. Pertaining to sales tax and has held that according to the principle of "ejusdem generis" will apply and term body of persons used indicates reference to unincorporated body of persons. Therefore, incorporated body of persons will not be covered under the ambit of Article 366(29A) (e) of the Constitution of India. Similarly, it was held that the same principle would apply for analyzing the provisions contained in explanation 3(a) and so in the negative list era, the incorporated association or body of persons would not be liable to service tax. This is for reason that the explanation 3(a) used the term "an unincorporated association or body of persons" instead of using the terms "person" or the term an "association of persons or body of individuals, whether incorporated or not". It was concluded that the legislature has continued with the pre-2012 scheme of not taxing member's club when they are in the incorporated form. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... han Society Registration Act and are incorporated club. Therefore, whether the conclusion drawn by the Hon'ble Apex Court that no service tax is payable by the incorporated clubs is applicable in GST regime also is required to be answered in the present application for advance ruling filed by them. B. QUESTIONS ON WHICH THE ADVANCE RULING IS SOUGHT:- Whether service tax is payable on the services provided by clubs to its members? C. PERSONAL HEARING In the matter personal hearing was granted to the applicant on 15.07.2020 through video conferencing. Sh. Pradeep Jain, Authorised Representative of applicant appeared for PH. During the PH, he reiterated the submissions already made in the written application. D. COMMENTS OF THE JURISDICTIONAL OFFICER Comments received from the Joint Commissioner, State Tax, Special Circle-1, Jodhpur vide letter dated 11.06.2020 are as under: - The Applicant has sought Advance Ruling to confirm the applicability of GST on Services Provided by club to its members. The applicant has taken the aid of Judgment delivered by the Hon'ble Apex Court in the case of State of West Bengal v/s Calcutta Club Limited in Civil Appeal No. 4184 of 2009. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of [sub-sections (1), (1A) and (2), the Government may, on the recommendations of the Council, specify, by notification, the transactions that are to be treated as,- (a) a supply of goods and not as a supply of services; or (b) a supply of services and not as a supply of goods. The above definition of supply clearly shows that supply made by a person Registered Under GST is exigible for GST if it falls under Section 7(1) of CGST/RGST Act whether it is a supply of goods or services. The shelter sought to be invoked under Section 7(1 )(A) and Schedule II of CGST/RGST Act is wholly misplaced and does not in way impose any fetter for imposition of Goods and Service tax enacted under the Article 246A of the Constitution of India. Furthermore, the shelter of Hon'ble Apex Court decision has no relevance in new GST Regime which encompasses both Goods and Services in one Umbrella and both Centre and state have exclusive power to levy tax on same base. The Applicant has Simplistically and ingeniously in self-serving manner concluded that no tax can be sought to be levied upon the services provide by the Club to its members on the basis of ratio of Judgment given by Hon'ble Ape ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (g) any corporation established by or under any Central Act, State Act or Provincial Act or a Government company as defined in clause (45) of section 2 of the Companies Act, 2013; (h) any body corporate incorporated by or under the laws of a country outside India; (i) a co-operative society registered under any law relating to co-operative societies; (j) a local authority; (k) Central Government or a State Government; (l) society as defined under the Societies Registration Act, 1860; (m) trust; and (n) every artificial juridical person, not falling within any of the above; * Section 2(102) of CGST Act, 2017 reads as under:- 2(102)- "services" means anything other than goods, money and securities but includes activities relating to the use of money or its conversion by cash or by any other mode, from one form, currency or denomination, to another form, currency or denomination for which a separate consideration is charged. * Section 7 of the CGST Act, 2017 reads as under:- Scope of supply,- (1) For the purposes of this Act, the expression -supply includes- (a) all forms of supply of goods or services or both such as sale, transfer, barter, exchange, lice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ope of 'supply' to tax supplies between the club/association and its members, to overcome the principle of mutuality. A retrospective amendment (w.e.f. July 1, 2017) has been made vide Finance Act, 2021 by inserting a new clause '(aa)' after clause (a), in Section 7(1) of the CGST Act to widen the scope of term 'supply' by including therein activities or transactions of supply of goods or services or both between any person (other than individual) to its members or constituents or vice versa for cash, deferred payment or other valuable consideration. Consequently, Para 7 of Schedule II of the CGST Act has been deleted retrospectively (w.e.f. July 1, 2017) which was related to 'supply of goods by unincorporated associations or body of persons to a member thereof for cash, deferred payment or other valuable consideration' being activity/ transaction treated as supply of goods. Further, an explanation is added to say that the person and its members or constituents shall be deemed to be two separate persons and overriding effect has been given to the said explanation over anything contained in any other law for the time being in force and even to the j ..... X X X X Extracts X X X X X X X X Extracts X X X X
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