2018 (9) TMI 1143 – CESTAT CHENNAI – TMI – Levy of service tax – renting of immovable properties such as commercial complex, shops, lands etc. to various parties – Held that:- The Hon’ble Supreme Court has found it proper to defer decisions in these matters awaiting the judgment of the nine Judge Bench in Mineral Area Development Authority and Others [2011 (3) TMI 1554 – SUPREME COURT] – in the interests of justice, all these appeals should be kept in abeyance pending the decision of the Hon’ble Supreme Court in all the three cases referred to supra, namely UTV News Ltd. [2018 (5) TMI 1367 – SUPREME COURT OF INDIA], Home Solutions Retails India Ltd. [2011 (10) TMI 13 – SUPREME COURT OF INDIA] and Ritika Pvt. Ltd. [2011 (12) TMI 706 – SUPREME COURT], since the final outcome therein will have a translational impact and affect the decision in all such matters as covered in these appeals. – ST/40994/2015, ST/41008/2015, ST/41538/2015, ST/40254/2016 – Final Order Nos. 42125-42128/2018 – Da
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as whether levy of service tax under section 65(105)(zzzz) of the Finance Act is within the Legislative competence of Union Parliament. The Hon ble Supreme Court took note that the very issue of legislative competence is pending before a nine Judge Bench of the Hon ble Supreme Court on a reference made in Mineral Area Development Authority and Others Vs. Steel Authority of India Ltd. – (2011) 4 SCC 450; that in view thereof, the Hon ble Supreme Court has opined that the matter should await the decision of the said nine Judge Bench. He also points out that the judgment of the Hon ble Delhi High Court in Home Solutions Retails India Ltd. Vs. Union of India – 2011 (24) STR 129 (Del.) which had upheld the constitutional validity of levy of service tax of renting of immovable property has been appealed against and is pending before the Hon ble Supreme Court as reported in 2012 (26) STR J118 (SC). So also, another judgment of the Hon ble Delhi High Court in Ritika Pvt. Ltd. dated 23.9.2011 w
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Hon ble High Court of Delhi in Home Solutions Retails India Ltd. (supra) and Ritika Pvt. Ltd. (supra) has been consistently followed by this Bench in all our recent decisions. No doubt, appeals against these judgments have been admitted by the Hon ble Supreme Court on 14.10.2011 and 16.12.2011 respectively. However, as pointed out by ld. ARs, there is no stay on operation of these judgments. 5.2 Nonetheless, it cannot be ignored that in a subsequent development, vide their order dated 5.4.2018 in the matter relating to UTV News Ltd. and others (supra) relied by the ld. Counsel, the Hon ble Supreme Court has gone into the question whether levy of service tax under section 65(105)(zzzz) ibid is within the legislative competence of Parliament or otherwise. The relevant portion of the said order of the Hon ble Supreme Court is reproduced as under:- We have heard the Learned Counsels for the parties at some length. 2. The question arising is whether Service Tax under Section 65(105)(zzzz)
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nnection or relation would be of any relevance to decide the issue of legislative competence appears to be pending before a nine judges Bench of this Court on a reference made in an order in Mineral Area Development Authority and Others v. Steel Authority of India and Others – (2011) 4 SCC 450. The questions referred are extracted below: 1. Having heard the matter(s) for considerable length of time, we are of the view that the matter needs to be considered by a Bench of nine Judges. The questions of law to be decided by the larger Bench are as follows : 1. Whether royalty determined under Sections 9/15(3) of the Mines and Minerals (Development and Regulation) Act, 1957 (67 of 1957, as amended) is in the nature of tax? 2. Can the State Legislature while levying a tax on land under List II Entry 49 of the Seventh Schedule of the Constitution adopt a measure of tax based on the value of the produce of land? If yes, then would the constitutional position be any different insofar as the tax
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e of T.N. [(1990) 1 SCC 12]? 6. Whether taxes on lands and buildings in List II Entry 49 of the Seventh Schedule to the Constitution contemplate a tax levied directly on the land as a unit having definite relationship with the land? 7. What is the scope of the expression taxes on mineral rights in List II Entry 50 of the Seventh Schedule to the Constitution? 8. Whether the expression subject to any limitations imposed by Parliament by law relating to mineral development in List II Entry 50 refers to the subject-matter in List I Entry 54 of the Seventh Schedule to the Constitution? 9. Whether List II Entry 50 read with List I Entry 54 of the Seventh Schedule to the Constitution constitute an exception to the general scheme of entries relating to taxation being distinct from other entries in all the three Lists of the Seventh Schedule to the Constitution as enunciated in M.P.V. Sundararamier & Co. v. State of A.P. [AIR 1958 SC 468: 1958 SCR 1422] [AIR p. 494: SCR at p. 1481 (bottom)]
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laced for hearing before a Bench of larger coram than the Bench whose decision has come up for consideration (see Central Board of Dawoodi Bohra Community v. State of Maharashtra [(2005) 2 SCC 673: 2005 SCC (L&S) 246: 2005 SCC (Cri) 546]. However, in the present case, since prima facie there appears to be some conflict between the decision of this Court in State of W.B. v. Kesoram Industries Ltd. [(2004) 10 SCC 201] which decision has been delivered by a Bench of five Judges of this Court and the decision delivered by a seven-judge Bench of this Court in India Cement Ltd. v. State of T.N. [(1990) 1 SCC 12], reference to the Bench of nine Judges is requested. The office is directed to place the matter on the administrative side before the Chief Justice for appropriate orders. 4. In view of the above, we are of the opinion that these matters should await the decision of the nine judges Bench where after the hearing of these matters will be taken up once again in the course of which i
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iles in respect of all these appeals for the purpose of statistics. So ordered. We, however make it clear that the appeal number and year already assigned to these cases shall remain unchanged, that any interim / stay order passed earlier in these cases shall continue on record and that the matters are closed only for statistical purpose. In this regard, we also draw sustenance from Tribunal s Larger Bench decision vide Final Order No. A/10843/2018 dated 26.4.2018 in the case of Small Industries Development Bank of India Vs. CST, Ahmedabad. Both sides are at liberty to file application before the Tribunal to reopen the matter pursuant to the outcome of the aforesaid matter by the Hon ble Supreme Court or in case of any other change of circumstance. In the result, the appeals are disposed of as files closed for purpose of statistics. (Dictated and pronounced in open court) – Case laws – Decisions – Judgements – Orders – Tax Management India – taxmanagementindia – taxmanagement – taxma
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