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TMI Blog2025 (3) TMI 968X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to anyone else in this regard. Regarding the contribution collected from the members since it is collected for the benefit of the members of the association, the decision in the case of State of West Bengal Vs. Calcutta club Ltd. [2019 (10) TMI 160 - SUPREME COURT], squarely covers the issue and hence the demand is unsustainable. Levy of service tax - intellectual property service - income received by the appellant under a memorandum of understanding for conducting property - HELD THAT:- In the absence of any legally protected intellectual property, the agreement entered by the referred in the impugned order cannot be classified as falling under the category of intellectual property service as per section 65(55b) of the Finance Act, 1994. Levy of service tax - club or association services - membership fees and subscription fees collected by the appellant - HELD THAT:- The said demand is also unsustainable since the doctrine of mutuality continues to be applicable to incorporated and unincorporated members' clubs even after the 46th Amendment adding Article 366(29A) to the Constitution of India as per the judgment of the Hon'ble Supreme Court in the matter of State of West ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vice to any other person to fall under the category of taxable service as per section 65 (105) read with section 99 of the Finance Act, 1994. To demands service tax, there must be two persons, one being the provider of service and the other being the recipient of service. The learned counsel also draw our attention to the judgment of the Hon'ble Supreme Court in the matter of State of West Bengal Vs. Calcutta club Ltd., (Supra); "49. In light of the view that we have taken, it is unnecessary to advert to Shri Dwivedi's arguments that the explanation (1) to Section 2(10) of the West Bengal Sales Tax Act is a stand-alone provision and not an 3explanation in the classical sense. We, therefore, answer the three questions posed by the Division Bench in State of West Bengal v. Calcutta Club Limited (supra) as follows: (1) The doctrine of mutuality continues to be applicable to incorporated and unincorporated members' clubs after the 46th Amendment adding Article 366(29A) to the Constitution of India. (2) (Young Men's Indian Association (supra) and other judgments which applied this doctrine continue to hold the field even after the 46th Amendment. 3) Sub-clause (f) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 32 thereof) and CIT, Kanpur and Anr. v. Canara Bank, (2018) 9SCC 322 (in particular paragraphs 12 and 17 therein), to the effect that a company incorporated under the Companies Act cannot be said to be "established" by that Act. What is missed, however, is the fact that a Company incorporated under the Companies Act or a cooperative society registered as a cooperative society under a State Act can certainly be said to be 'constituted" under any law for the time being in force. In R.C. Mitter & Sons, Calcutta v. CIT, West Bengal, Calcutta, (1959) Supp. 2 SCR 641, this Court had occasion to construe what is meant by "constituted" under an instrument of partnership, which words occurred in Section 26A of the Income Tax Act, 1922. The Court held: "The word "constituted" does not necessarily mean "created" or "set up", though it may mean that also. It also includes the idea of clothing the agreement in a legal form. In the Oxford English Dictionary, Vol. II, at pp. 875 & 876, the word "constitute" is said to mean, inter alia, "to set up, establish, found (an institution, etc.)" and also "to give legal or official form or shape to (an assembly, etc.)". Thus the word in its wid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attention to the memorandum of understanding entered between the appellant and M/s. Impressario Event Marketing Company private limited, where it is categorically held that M/s. Impressario Event Marketing Company private limited shall pay an amount of Rs. 16 lakhs towards the purchase of rights for conducting property show for the appellant. The said transaction is not falling under the category of intellectual property service with reference to section 65 (105)(zzr) and section 65 (55a) of the Finance Act, 1994, since, there is no transfer of intangible property, which is held to be with the M/s. impressario having legal rights covered by any Indian law. There is no transfer of intellectual property rights as contemplated under the above provision. Though the impugned order referred to some of the designs and other connected matters, the impugned order is not sustainable by the nature of design referred in the order. The Learned counsel draw our attention to the judgment of the Hon'ble Supreme Court in the matter of Catapro Technologies Vs. C.EX. Nashik, 2017 (48) STR 94(Tri.-Mumbai); 5. It is apparent from the definition of the taxable service that the liability will arise in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax demand on the other services, the Learned AR reiterated the finding in the impugned order. 9. Heard both sides and perused the records. 10. Regarding the demand of service tax as applicable to exhibition conducted by the appellant, as per the impugned order, it is specifically stated that; "36. The next issue to be examined in this case is whether the assessee has provided any services under the category of "Business Exhibition Services". First of all I find that the assessee has taken a Service Tax registration from the department for providing services under the category of "Business Exhibition Services". One of the main objectives of the assessee is to conduct business exhibitions and property shows. This has been admitted by the executive directors of the assessee in their statements dated 17.05.2007 and 11.10.2007. I find that the assessee has conducted business exhibitions and property shown during the period from 10.09.2004 to 30.09.2007 and received remuneration from the exhibitors. These exhibitions/property shows are mainly conducted for the promotion of sale of flats and apartments built by members of their association." 11. Though the exhibition conducted by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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