Tahnee Heights Co-operative Housing Society Limited Versus Commissioner of CGST, Mumbai South
Service Tax
2018 (10) TMI 901 – CESTAT MUMBAI – 2019 (21) G. S. T. L. 440 (Tri. – Mumbai)
CESTAT MUMBAI – AT
Dated:- 12-10-2018
ST/85823 to 85827/2018 & ST/85829/2018 – A/87626-87631/2018
Service Tax
Mr. S.K. Mohanty, Member (Judicial)
For the Appellant : Shri Prasad Paranjape, Advocate with Shri Mohit Raval, CA
For the Respondent : Shri M.K.Sarangi, Joint Commissioner (AR)
ORDER
Per: S.K. Mohanty
Brief facts of the case, leading to this appeal, are as under:-
1.1 The appellant is a co-operative housing society, registered under the Maharashtra Co-operative Act, 1960 (for short, “the Act of 1960”). The appellant is the owner of the building, known as “Tahnee Heights”, in which members of such society owns their residential flats. The members of the appellant's society contribute towards maintenance and up-keep of the building and common expenses, as per the bye-
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r contended that the appellant being a body corporate, its case will not be governed by explanation 3(a) appended to Section 65B(44) of the Finance Act, 1944 (effective from 01.07.2012).
1.3 The department initiated show cause proceedings against the appellant, seeking for rejection of the refund applications. The matter was adjudicated against the appellant, in rejecting the refund applications. The appellant had preferred separate appeals before the ld. Commissioner (Appeals), Mumbai against different adjudication orders passed by the original authority. All the appeals filed by the appellant were disposed of by the lower appellate authority vide the common impugned order dated 27.12.2017. The appeals were rejected inter alia, on the ground that in the light of explanation 3(a) to Section 65B(44) ibid, the appellant and its members are to be treated as distinct entities and therefore, the appellant has correctly paid service tax.
1.4 Feeling aggrieved with the impugned order, the a
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26.04.2018 of the Tribunal passed in Appeal No. ST/11732/2017, in the case of Commissioner of Service Tax, -Vs.- Rajpath Club Ltd., to state that both under the un-amended and amended provisions of Finance Act, 1994, service provided by the society/club to its members shall not be leviable to service tax, in view of mutuality.
3. On the other hand, the ld. AR appearing for the revenue reiterated the findings recorded in the impugned order. He further submitted that as per the concept of “negative list” of services defined under Section 66D ibid (w.e.f. 01.07.2012), any service if not categorized there under or specifically exempted under any notification, shall be considered as a taxable service, for the purpose of levy of service tax.
4. Heard the rival contentions and perused the records, including the written submissions filed by both sides.
5. The issue involved in these appeals for consideration is, whether the ld. Commissioner (Appeals) has correctly interpreted the statutory
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other amount. Explanation – For the purposes of this section, taxable service includes any taxable service provided or to be provided by any unincorporated association or body of persons to a member thereof, for cash, deferred payment or any other valuable consideration.
Period after 01.07.2012 (Negative list)
Section 65B(44) : “service” means any activity carried out by a person for another for consideration, and includes a declared service.
Explanation 3(a) : For the purposes of this chapter, an unincorporated association or a body of persons, as the case may be, and a member thereof shall be treated as distinct persons.
7. On reading of the above statutory provisions, it transpires that there is no much of difference for recognition of the taxable service in dispute, for levy of service tax, under both the un-amended and amended provisions of the service tax statute. In order to be categorized as a “taxable service”, there must be existence of two parties i.e. the service pr
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Tribunal in the case of Federation of Indian Chambers of Commerce & Industry (supra) has held that on application of the principle of mutuality, services provided by clubs/associations to their respective members would not fall within the ambit of the taxable “club or association” service. Further, in the case of Matunga Gymkhana (supra), this Tribunal has also taken the similar view.
Though the said decisions were rendered under the un-amended definition of taxable service (effective up to 30.06.2012), but the ratio laid down therein is squarely applicable to the post amended definition of “service' contained in the negative list regime (w.e.f. 01.07.2012), inasmuch as, in absence of presence of both service provider and service receiver, the transaction cannot be statutorily terms as taxable service and will not be exigible to service tax. Even under the negative list regime, for the period from 01.10.2015 to 31.03.2016, this Tribunal in the case of Rajpath Club Ltd. (supra) ha
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y taxes, water charges, common electricity charges, contribution to repair and maintenance fund, contribution to sinking fund, service charges etc. Clause 69 of the said Bye law also provides that the committee shall apportion the share of each member towards the charges of the society on the basis mentioned therein.
10. On perusal of the above statutory provisions, it reveals that upon registration of the society, the same is legally accepted as a body corporate and thereafter, its function and operation are strictly guided as per the laid down bye laws, provided for the purpose. In this case, it is no doubt, a fact that the appellant is a co-operative society and is duly incorporated under the Act of 1960. The appellant also do not provide any service to its members, who pay the amount towards their share of contribution, for occupation of the units in their respective possession. Further, the fact is also not under dispute that the appellant do not provide any facilities or advanta
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