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TMI Blog2025 (2) TMI 850X X X X Extracts X X X X X X X X Extracts X X X X ..... pugned provisions of the Act in pith & substance would fall within the precincts of State Legislative power under Entries 54 & 62 of List II, Schedule VII of the Constitution of India and therefore, the Parliament lacked competence to enact the same providing for levy in the nature of service tax. In support of this submission, they pressed into service a Division Bench decision of Hon'ble Kerala High Court in Union Of India Vs. Kerala Bar Hotels Association 2014 SCC OnLine Ker 20039. In appreciable fairness, Mr. Chandrakanth Ariga appearing for one of the appellants submits that this decision along with Bombay High Court decision in Indian Hotels And Restaurants VS. Union of India, (W.P.No.2159 OF 2011 disposed off on 08.04.2014) is put in challenge that is pending before the Apex Court. He also suggests that the hearing of these matters be deferred till after the said challenge is decided, one way or the other. He also draws our attention to a Co-ordinate Bench order dated 25.11.2019 in support of said request. 3. The Co-ordinate Bench order reads as under: "Heard learned counsels. 2. In terms of the impugned order dated 03.11.2014, passed in Writ Petition No.2033 of 2014 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ... it is important to note that service tax is a value added tax which in turn is a general tax which applies to all commercial activities involving production of goods and provision of services. ..." observed the Apex Court in ALL INDIA FEDERATION OF TAX PRACTIONERS vs. UNION OF INDIA AIR 2007 SC 2990. (b) Service tax is a levy on the transaction of certain services specified in the Act. It is an indirect tax akin to Excise Duty or Sales Tax, in the sense that normally the service provider pays it and thereafter recovers the same from the recipient of taxable service. To begin with, the taxation was on the Positive List basis, that is to say, the levy was only on the activities enlisted as 'Service'. Thus, the journey of taxation of services began by selective levy on just three services, namely, General Insurance Service (Non-Life insurance), Telephone Service & Stock Broker Service. Subsequently, this list grew: for the Financial Year 2003-2004 as many as 62 services were enlisted; for the following year it was 75; for the Financial Year 2011-12 this list consisted of 119 services. (c) The Service Tax law took giant leaps in the next seven years of its initiation both in ter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a long list of exclusion is not reproduced. (c) The substantive definition of 'service' has four building blocks namely: "activity"; "carried out"; "by one person for another" and, "for consideration". The word 'activity' has not been defined in the Act. In common parlance, it would mean an act, a deed, a work, an operation or the like. An 'activity carried on' means an act executed, a deed done, a work accomplished or an operation carried out. This expression has a wider connotation and includes both active and passive act. The second component of the definition is consideration, which again is not well defined. However, as per Explanation (a) to section 67 of the Act, 'consideration' includes any amount that is payable for the taxable services provided or to be provided. This Explanation does not make the idea clear. 4.3 Now let us see the text of impugned provisions: Sub-clauses (zzzzv) and (zzzzw) of Clause 105 of Section 65 of the Finance Act, 1994, as amended by Finance Act, 2011, would read as under: "(zzzzv) services provided or to be provided, to any person, by a restaurant, by whatever name called, having the facility of air-conditioning in any part of the establish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and remittance of VAT are mutually exclusive, the nature of levies being different. Different aspects of a single transaction can be taxed under different statutes. There can be levy of more than one tax on a subject matter, if incidence of each of the taxes is different from the other and such taxes may be imposed under different statutes. 4.6 The question raised before us is largely no longer res integra. In TAMIL NADU KALYANA MANDAPAM ASSN vs UNION OF INDIA (2004) 135 STC 480, at paragraphs 43 & 44, it is observed as under: "...on Article 366 (29A) (f), we are of the view that it does not provide to the contrary. It only permits the State to impose a tax on the supply of food and drink by whatever mode it may be made. It does not conceptually or otherwise includes the supply to services within the definition of sale and purchase of goods... In other words, the operative words of the said sub-article is supply of goods and it is only supply of food and drinks and other articles for human consumption that is deemed to be a sale or purchase of goods. The concept of catering admittedly includes the concept of rendering service. The fact that tax on the sale of the goods involved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is competent to enact law with regard to levy of Sales Tax. When State Government imposes tax on sale of goods, it does not do so on the service aspect of the sale. Thus, service tax is not levied on the transaction when sale of goods occurs. Service tax can however be levied on the said transaction by the Parliament, which is competent to enact a law imposing service tax. Hence, in the instant case, by virtue of the insertions of clauses zzzzv and zzzzw to subsection 105 of Section 65 of the Finance Act, 1994, the Parliament intends to levy service tax on those transactions relatable to service aspect and not on the aspect of sale of goods, which the Parliament is competent to do so..." 4.8 The vehement submission of learned counsel for the appellants that KERALA BAR HOTELS ASSOCIATION supra supports their view, may be true. The Kerala High Court disagrees with the decision of Bombay High Court in INDIAN HOTELS AND RESTAURANTS supra. On a broad perspective, we are of the considered view that the reasoning in KERALA BAR HOTELS ASSOCIATION supra, does not appear to accord with the inner voice of Apex Court decisions, adverted to above. We do not find any error in learned Single ..... X X X X Extracts X X X X X X X X Extracts X X X X
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