9911796707
TMI Blog2025 (3) TMI 628X X X X Extracts X X X X X X X X Extracts X X X X ..... ity. There is no service provider and service recipient relationship. The issue as to whether the subscription / entrance fees collected by the association from its members can be subjected to levy of service tax under the said category was considered by the Tribunal in the case of M/s. Ranchi Club Ltd. The Hon'ble Apex Court in the case of State of West Bengal Vs. Calcutta Club Limited [2019 (10) TMI 160 - SUPREME COURT]] has also held that the demand of service tax on this count cannot sustain. Following these decisions, the demand under this heading made on the appellant cannot sustain and requires to be set aside. Levy of service tax - Business Auxiliary Services - HELD THAT:- The appellant has contested that such commission collected is as pure agent and the said contention has not been controverted by the adjudicating authority as well as the appellate authority. The Show Cause Notice is also not clear as to how this amount is to be treated as business auxiliary services or under which limb of the definition the said activities of the appellant would be covered. The adjudicating authority also after reproducing the definition of BAS and the various limbs has not slotted the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during the period from April 2013 to March 2014, they are receiving income from their customers/clients under various headings as shown in their Balance Sheet. As per Section 66E(a) of the Finance Act, 1994 the "Renting of Immovable Property" service is a declared service, and the other two services are not covered under the Negative List and are not covered under the exemption Notification No. 25/2012-ST dated 20.06.2012. Thus, the services rendered fall within the meaning of "service" defined under Section 65B(44) of the Finance Act, 1994. Though it was noticed that the activity rendered by the appellant is liable to Service Tax it was observed that they have failed to register with the Department, failed to pay the service tax on the taxable income received during the period in dispute and failed to file the half-yearly ST-3 Returns with the Department. 3. Inasmuch as demand for the previous period has been confirmed vide Order-in-Original No. 27/2014-JC(ST) dated 30.04.2014 passed by the Joint Commissioner of Central Excise, Salem the demand for the further period 2013-14 was raised on the appellant vide Statement of Demand No. 64/2014 dated 26.06.2014 demanding Service Tax a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r referred to above is applicable only to the amounts received from the Members such as subscription fee, life membership fee and any other additional fees which are distinct from donations. Therefore, the order of the appellate authority is opposed to law. ii. Adverting to the averment made in Para 5 of the impugned order to the effect that Mr. P. Mathiyalagan in his statement dated 16.10.2012 stated that donations have been collected from members for development of association. In this regard, the deposition given by the said Mr. P. Mathiyalagan is relatable to the period 2007-2012 whereas the said person got associated with the appellant only during later portion of the above period. This is enough to show that the person who is alleged to have been deposed is not conscious of the elementary fact that one can depose only for the period during which he was in employment. This itself shows that the said deposition is not one that flowed from the person concerned on his own. Further, the contents of deposition, if divorced from actual truth, are to be treated not as grain but as chaff and to be summarily rejected. The Ld. Advocate has stated that it is a settled law that any oral ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d made it clear that they have acted only as pure agents. The Adjudicating Authority and the first Appellate Authority without rebutting the said submission made by the appellant, had passed orders simply classifying it as business auxiliary service and demanded service tax which is not legally tenable. vi. As regards miscellaneous income, the Ld. Advocate submits that the same are amounts not claimed by members/others and they rank only with donations since no quid pro quo is involved. The demand of service tax on this score is not sustainable in law since no element of service is either overtly or covertly involved. vii. The Ld. Advocate states that in para 7 of the impugned order, the first Appellate Authority stated that the appellant had leased and rented out the land and building to M/s. Bharat Petroleum Corporation Limited and received lease/rent amounts from them and therefore service is imposable under the category of 'Renting of Immovable Property Services'. The appellant wishes to state that the first Appellant Authority has not examined the facts in the appeal, or the grounds of appeal, passed the cryptic order without discussing the above which has rendered the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or to be provided to its members, or any other person, by any clubs or association membership service in relation to provision of services, facilities or advantages for a subscription of any other amount'. The relationship of a member with its association and vice versa is hit by the doctrine of mutuality. There is no service provider and service recipient relationship. The issue as to whether the subscription / entrance fees collected by the association from its members can be subjected to levy of service tax under the said category was considered by the Tribunal in the case of M/s. Ranchi Club Ltd. (supra). The Hon'ble Apex Court in the case of State of West Bengal Vs. Calcutta Club Limited [2019 (29) GSTL 545 (SC)] has also held that the demand of service tax on this count cannot sustain. Following these decisions, we are of the view that the demand under this heading made on the appellant cannot sustain and requires to be set aside. Ordered accordingly. 10. The next issue that we address is the demand of service tax on the appellant under Business Auxiliary Services. It has been discussed by the Adjudicating Authority that the appellant is engaged in providing various services ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
