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TMI Blog2022 (10) TMI 629X X X X Extracts X X X X X X X X Extracts X X X X ..... . 24097/2021 - - - Dated:- 24-8-2022 - HON'BLE MR JUSTICE RAJIV SHAKDHER AND HON'BLE MS JUSTICE TARA VITASTA GANJU Petitioner Through: Mr Dhruv Mehta, Sr. Advocate with Mr Manish K. Srivastava, Mr Akhil Hasija and Mr Sagar Arora, Advocates. Mr Anupam Varma with Mr Nikhil Sharma and Ms Manu Tiwari, Advocates. Respondents Through: Mr V.V. Gautam with Mr Isha Vashisth, Advocates for respondent no.1. Mr Alok Raj, Advocate for Mr Satyakam, ASC for respondents no.2 and 4. Mr Sanjeev Mahajan, Advocate for respondent no.3. Mr Ajay Digpaul, CGSC with Mr Kamal Digpaul and Ms Swati Kwatra, Advocates for UOI. RAJIV SHAKDHER, J.: (ORAL) [Physical Hearing/Hybrid Hearing (as per request)] 1. There are two issues which arise for consideration in the above-captioned writ petitions: (i) First, whether service tax, during the relevant period, was payable by the petitioners on maintenance of street lights. (ii) Second, if it is held that during the relevant period, the petitioners were required to pay service tax, then whether the same, if at all, could be recovered from respondent no.1 i.e., Municipal Corporation of Delhi [in short, MCD .] 2. We may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding those in relation to matters, listed in the Twelfth Schedule of the Constitution. 5. 4.(a) The Twelfth Schedule of the Constitution, inter alia, refers to roads and bridges, as also public amenities including street lighting, parking lots, bus stops and public conveniences. (See items 4 and 17 of the Twelfth Schedule.) 5.5. It is, therefore, the contention of Mr Gautam that the omnibus expression management, maintenance or repair of roads , adverted to in the 2009 Notification, as noted above, would include the functions entrusted to respondent no.1/MCD, of maintaining street lights. 6. The instant writ petitions have been pending for quite some time. 6.1. Insofar as W.P.(C) No. 11127/2009 is concerned, notice in the said writ petition was issued on 06.10.2009, while notice in W.P.(C) No. 4586/2012 was issued on 01.08.2012. 7. To be noted, at one point in time, these matters were heard by a Single Judge. On one such occasion i.e., on 15.07.2019 the Learned Single Judge passed the following order : Learned Senior Counsels / counsels for the petitioners and the respondent Corporation have relied upon two different notifications, inasmuch as Mr. Sandeep Sethi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Street lights in the area of MCD Delhi and MCD Delhi is service recipient. 6. That during the period under dispute there was no exemption to service provided by the petitioner to the service recipient being local body / Government, therefore, the service tax was correctly discharged by the petitioner. Accordingly, I deem it appropriate that the concerned member of the Central Board of Indirect Taxes shall file an affidavit clarifying the position whether any notification has been issued by the Government exempting service tax on the maintenance of street lights. If the answer in the affirmative, he shall enclose the notification along with affidavit. He shall also clarify the date of effect of the said notification. Let an affidavit be filed within three weeks from today. 8. What is evident from the extract of the order dated 15.07.2019 is that apart from the 2009 Notification, there is also a reference to Notification No. 32 of 2010, dated 22.06.2010. 8.1. Besides this, it is also apparent upon reading the very same extract of the order dated 15.07.2019, that the Learned Single Judge, after examining the contents of the aforementioned notifications, was of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce Act, 1994, provided to any person by any other person in relation to management, maintenance or repair of roads from the whole of the service tax leviable thereon under section 66 of the said Finance Act. Not applicable as service by way of maintenance of street lights provided to a local authority is not a service in relation to management maintenance or repair of roads . 2 Notification No. 32/2010 dated 22.06.2010 Exempts the taxable service provided to any person, by a distribution licensee, a distribution franchisee, or any other person by whatever name called authorized to distribute power under the Electricity Act 2003 (36 of 2003), for distribution of electricity, from the whole of service tax leviable thereon under section 66 of the said Finance Act. Not applicable as service by way of maintenance of street light provide to a local authority is nothing to do with distribution of electricity. 3 Entry 12 (a) of Notification No. 25/2012 dated 20.06.2012 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng extract taken from the affidavit filed by respondent no.1/MCD: xxx xxx xxx 2. That the present affidavit is being filed in pursuance of the order(s) dated 19.08.2011 and 17.01.2012 passed by this Hon ble Court. It is submitted that as stated in para No. 44 of. the counter affidavit, the MCD had not applied to the Central Govt. after the rejection order. However, it is submitted that vide letter No. 9095/CACUM-FA/2012 dated 16.01.2012, which came to the knowledge of the deponent afterwards than 17.01.2012, through CA-Cum-FA, MCD, the Respondent side gave the said letter/application for exemption of service tax on maintenance of street lights with the Director (Service Tax), Central Board of Excise and Customs, North Block, New Delhi. However, no response to the same has been received till date by the said office of MCD. xxx xxx xxx 11. Mr Gautam s contention that the 2009 Notification or the 2010 Notification should be read to include maintenance of street lights does not impress us. It is well-established that an exemption notification has to be read strictly. It does not warrant for inclusion of a service, which is not provided therein. 11.1. In thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at they have paid, since the recipient would have to bear the ultimate burden of the payments in that behalf. 14.1. We may note that Mr Dhruv Mehta, learned senior counsel, in support of this plea, which is, that the ultimate burden rests on the recipient, has relied upon the judgment of the Learned Single Judge of this Court in Pearey Lal Bhawan Association v. Satya Developers Pvt. Ltd., ILR (2011) 1 Delhi 604. 14.2. The aforementioned judgment of the Learned Single Judge has been affirmed by the Division Bench in Satya Developers Pvt. Ltd. v. Pearey Lal Bhawan Association dated 13.10.2015, passed in RFA(OS) 24-25/2011. 15. As indicated at the very outset, Mr Mehta s submission that the recipient will have to be burdened with the service tax liability, if it is found, that there was no exemption operating in the relevant period, is, in any event, not contested by Mr Gautam. 16. Thus, for the foregoing reasons, we are inclined to hold as follows: (i) During the relevant period, there was no exemption operating qua the payment of service tax on the maintenance of street lights. (ii) The petitioners, rightly, paid the service tax as a service provider in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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