Commissioner, Idappadi Municipality, Commissioner, Gobi Chettipalayam Municipality, Commissioner, Dharmapuri Municipality Versus Commissioner of GST & Central Excise, Salem
Service Tax
2018 (9) TMI 1143 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 19-7-2018
ST\/40994\/2015, ST\/41008\/2015, ST\/41538\/2015, ST\/40254\/2016 – Final Order Nos. 42125-42128\/2018
Service Tax
Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical)
\nShri S. Kannappan, Advocate for the Appellants
\nShri K. Veerabhadra Reddy, JC (AR) for Respondents
\nORDER
\nPer Bench
\nThe common dispute in all these appeals concern taxability on amounts received by the appellants towards renting of immovable properties such as commercial complex, shops, lands etc. to various parties. The lower authorities in these cases have confirmed the demands of service tax with interest on such amounts under the head Renting of Immovable Property as defined in Section 65(105)(zzzz) o<\/p>\n
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Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n lutions 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 which had held that service tax imposed under section 65(105)(zzzz) of the Act could not be held as unconstitutional has also been appealed against and admitted by the Hon'ble Supreme Court as reported in 2017 (52) STR J204 (SC). The ld. Counsel prays that in view of these developments, the decisions in all these appeals may be deferred till the final decision of the Hon'ble Supreme Court. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n as 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:- = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n ons 9\/15(3) of the Mines and Minerals (Development and Regulation) Act, 1957 (67 of 1957, as amended) is in the nature of tax? = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n ? = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n tate 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.” = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n","protected":false},"excerpt":{"rendered":" Commissioner, Idappadi Municipality, Commissioner, Gobi Chettipalayam Municipality, Commissioner, Dharmapuri Municipality Versus Commissioner of GST & Central Excise, SalemService Tax2018 (9) TMI 1143 – CESTAT CHENNAI – TMICESTAT CHENNAI – ATDated:- 19-7-2018ST\/40994\/2015, ST\/41008\/2015, ST\/41538\/2015, ST\/40254\/2016 – Final Order Nos. 42125-42128\/2018Service TaxMs. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical) Shri S. Kannappan, … Continue reading “Commissioner, Idappadi Municipality, Commissioner, Gobi Chettipalayam Municipality, Commissioner, Dharmapuri Municipality Versus Commissioner of GST & Central Excise, Salem”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-13844","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/13844","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=13844"}],"version-history":[{"count":0,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/13844\/revisions"}],"wp:attachment":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=13844"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=13844"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=13844"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
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\n3. On the other hand, ld. AR Shri K. Veerabhadra Reddy submitted that the judgments of the Hon'ble High Court of Delhi in Home Solutions (supra) as well as Ritika Pvt. Ltd. (supra) have not been stayed by the Hon'ble Supreme<\/p>\n
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\n“We have heard the Learned Counsels for the parties at some length.
\n2. The question arising is whether “Service Tax” under Section 65(105)(zzzz) of the Finance Act, 1994 on renting of immovable property or any other service in relation to such renting, for use in the course of or, for furtherance of, business or commerce is within the legislative competence of the Union Parliament.
\n3. The above question is directly relatable to the scope and ambit of Entry 49 of List II of the Seventh Schedule to the Constitution of India dealing with “Taxes on lands and buildings”. If the impost\/levy is directly relatable to the lands\/buildings contemplated in Entry 49 of List II of the Seventh Schedule to the Constitution of India we would have had no hesit<\/p>\n
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\n2. 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 on land is imposed on mining land on account of List II Entry 50 and its interrelation with List I Entry 54?
\n3. What is the meaning of the expression “Taxes on mineral rights subject to any limitations imposed by Parliament by law relating to mineral development” within the meaning of Schedule VII List II Entry 50 of the Constitution of India? Does the Mines and Minerals (Development and Regulation) Act, 1957 contain any provision which operates as a limitation on the field of legislation prescribed in List II Entry 50 of the Seventh Schedule of the Constitution of India? In particular, whet<\/p>\n
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\n9. 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)]?
\n10. Whether in view of the declaration under Section 2 of the Mines and Minerals (Development and Regulation) Act, 1957 made in terms of List I Entry 54 of the Seventh Schedule to the Constitution and the provisions of the said Act, the State Legislature is denuded of its power under List II Entry 23 and\/or List II Entry 50?
\n11. What is the effect of the expression “… subject to any limitations imposed by Parliament by law relating to mineral development” on the taxing power of the State Legislature in List II Entry 50, particularly in view of its uniqueness in the sense that <\/p>\n
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\n4. 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 it will be open for the parties to urge such additional points as may be considered relevant. The matter is accordingly deferred until disposal of the issues pending before the nine judges Bench in Mineral Area Development Authority and Others (supra).”
\n5.3 Discernibly, 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 (supra). Viewed in this light, we are of the considered opinion, that in the interests of justice, all these appeals should be kept in ab<\/p>\n
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