Commissioner Of Service Tax, ... vs Appearance

IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,WEST ZONAL BENCH AT MUMBAI

COURT No. I

APPEAL No.ST/87100/13 & ST/89910/13

(Arising out of Order-in-Appeal No.187 & 188 dated 24/12/2012 & 22/01/2012 passed by Commissioner of Service Tax (Appeals), Mumbai)

For approval and signature:

Honble Mr.M.V. Ravindran, Member (Judicial) Honble Mr. P.R. Chandrasekharan, Member (Technical)

1. Whether Press Reporters may be allowed to see :No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the :No CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether Their Lordships wish to see the fair copy :Seen of the Order?

4. Whether Order is to be circulated to the Departmental :Yes authorities? ========================================

Commissioner of Service Tax, Respondent Mumbai Vs. Atlanta Premises Co-Op. Society Ltd., Appellant

Appearance: Shri.K.S.Mishra, Addl. Comm. (AR) for appellant Shri.Pankaj Joshi, CA, for respondent

CORAM: Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. P.R.Chandrasekharan, Member (Technical)

Date of Hearing : 20/01/2015 Date of Decision : 20/01/2015

ORDER NO

Per: M.V. Ravindran

1. These two appeals are disposed of by a common order as they are raising the same question of law and on the same set of facts for different periods.

2. Heard both sides and perused the records.

3. On perusal of the records, it transpires that the Revenue is aggrieved by the impugned orders on the ground that the first appellate authority has held in favour of the assessee holding that they are not rendering any services under Club or association services and as also renting of immovable property services. The facts in brief that the respondent is a Co-operative Society and registered with Maharashtra Co-Operative Societies Act, 1960 and are collecting amounts from their members towards maintenance charges, parking charges, NOC charges, antenna charges, water charges and electricity charges, etc., on monthly basis and the said funds are utilised by the respondent to maintain and administer the buildings. The respondent was under belief that they are supposed to pay the tax; discharged the service tax liability under protest. Subsequently they filed a refund claim before the adjudicating authority, who rejected the same after following due process of law. The first appellate authority relying upon the judgement of the Honble High Court of Jharkhand in the case of Ranchi Club Ltd. Vs. CCE  2012 (26) STR 401 (JHAR) setting aside the orders-in-original and allowed the refund claim.

4. Learned DR submits that the inference as to services provided by the respondent does not fall under the club or association services, and the amounts which have been collected are returned to the service provider and also that the appellate authoritys inference that association is exempted under Section 25 of the Act, is not correct, and that the Revenue is in appeal before the Apex Court against the judgement of Jharkhand High Court in the case of Ranchi Club Ltd.

5. Learned CA submits that an identical issue came up before the Honble High Court of Gujarat in the case of Sports Club of Gujarat Ltd. Vs UOI  2013 (31) STR 645 (Guj) wherein the definition itself was struck down as ultra virus. He also relied upon the recent judgement of this Tribunal in the case of Tahnee Heights Co-Operative Housing Society Ltd. and others vide final order No.A/1800-1803/14/CSTB/C-I dated 18/12/2014 in the same proposition.

6. We find that the appellate authoritys order is correct for more than one reasons. Firstly, we find that the first appellate authority has correctly followed the law has been laid down by the Honble High Court of Jharkhand in the case of Ranchi Club Ltd. (supra). Secondly, we find that the findings recorded by the first appellate authority that there is no mutuality of interest in this case is correct as the respondent is a Co-operative society and the provisions of Maharashtra Co-Operative Act will apply. Thirdly, we find that the amount which have been collected by the respondent from their members is undisputedly utilised for maintenance and upkeep of the society; property for which all members are charged depending upon the space occupied by the member of the society.

7. We find that the contention of learned CA is correct, as to similar issue is decided by this Bench in the case of Tahnee Heights Co-Operative Housing Society Ltd. wherein we have considered all the judgements on the issue and held that the issue is no more res integra and the association and members cannot be separated. In view of the foregoing, we hold that the first appellate authority is correct in coming to the conclusion the orders in original need to be set aside and the respondent is eligible for refund of the amounts paid by them under protest. Upholding the impugned orders, we reject the appeals filed by the Revenue are rejected.

(Dictated in Court)

(P.R. Chandrasekharan) Member (Technical) (M.V. Ravindran) Member (Judicial)

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