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Corporate News *  Missing seized records must be considered while testing ITC claim; duplicate GST demands ordered corrected: Delhi High Court. *  GST appeal can’t be rejected without addressing taxpayer’s grounds: Allahabad High Court. *  Surplus IGST credit can offset CGST, SGST shortfall: GSTAT. *  GST refund can’t be denied when cancelled airfares are returned with tax: GSTAT. *  3 Hearing notices issued within 2 minutes: Gujarat High Court flags portal flaw, seeks report. *  GSTR-9, GSTR-9C filing for FY 2025-26 enabled; pending GSTR-1 and GSTR-3B must be filed first. *  Dupattas are exempt fabrics, can’t be taxed as fibres at 4%: Madras High Court. *  Full transitional credit allowed on capital goods received after GST rollout: GSTAT denies Rs. 6.99 lakh export duty credit. *  GST return mismatch alone can’t justify fraud proceedings: GSTAT orders fresh adjudication under section 73. *  Supplier found non-existent later can’t alone justify input tax credit denial: GSTAT. *  GST interest stops once tax reaches government account, can’t run until return filing: GSTAT. *  Cancelled flat booking- GST refund can’t be denied without excluding COVID period from limitation: GSTAT. *  India notifies rules of origin for India–New Zealand FTA. *  Incomplete E-bike kits classifiable as complete vehicles, but not eligible for CKD duty concession: CESTAT. *  Same GST rate on main input and output can’t by itself bar inverted duty refund: GSTAT. *  Unjust enrichment doesn’t apply to customs refunds from assessments finalised before July 13, 2006: Gujarat High Court. *  CENVAT credit can’t be denied solely because plant And machinery are embedded in earth: Karnataka High Court. *  DFIA exports ineligible for RoDTEP benefits; customs directs repayment with applicable interest. *  Second E-Way bill alone doesn’t prove another supply: GSTAT. *  Bail denied in Rs. 1.19 crore fake GST refund case over risk of accused absconding again: Punjab and Haryana High Court. *  GST registration can be restored after revocation deadline if outstanding dues are paid: Gauhati High Court. *  Multiple GST proceedings over same suppliers: Calcutta High Court directs dept. to share findings for adjudication. *  E-Governance portal services not OIDAR, fixed deposit interest not taxable: CESTAT. *  Rs. 500 Stamp duty required on authority letters for CAs, CMA and GST practitioners in Pune GST division.  *  Rs. 1.10 crore GST refund must be paid in cash after business closure: Allahabad High Court. *  Godown rent attracts 18% GST even when used exclusively for exempt agricultural warehousing: AAR. *  GST portal launches "Multi-State Registration" facility: one master TRN for registration applications across multiple States/UTs. *  RoDTEP scheme extended till 31st December, 2026.  *  Mere disagreement with order can’t override Rs. 20 lakh appeal limit: GSTAT. *  Customs interest can’t be backdated before confiscation liability is determined; nearly 8 year period excluded: Delhi High Court.
Subject News *  GST summons: anticipatory bail maintainable without arrest order, but relief denied in evasion case: Allahabad High Court. *  GST Appeal can’t be decided without hearing taxpayer’s objections to fresh evidence: Allahabad High Court. *  GST ITC can’t be reversed merely because supplier grants discount without reducing tax liability: GSTAT. *  Mere quoting of GST provision is not a valid charge: GSTAT quashes ITC denial. *  Personal hearing mandatory before adverse GST order, even without taxpayer’s request: Rajasthan High Court. *  Parallel bail pleas without full disclosure amount to abuse of process Rs. 43.08 crore GST case sent for fresh hearing: Supreme Court. *  GST refund based on unchallenged advance ruling can’t be recovered using later circular: GSTAT. *  Payment of GST alone doesn’t end interest and penalty liability when tax and interest remain unpaid beyond 30 days of notice: GSTAT. *  GST demand over builders’ 80% procurement rule requires reasoned adjudication: GSTAT. *  Eligible ITC doesn’t automatically entitle taxpayers to compensation cess refund on domestic sales: GSTAT. *  GST confiscation order passed before reply deadline invalid: GSTAT. *  GST interest can’t be retained after tax refund on delayed export receipts: Punjab & Haryana High Court. *  GST appeal can’t be dismissed over pre-deposit shortfall without opportunity To respond: Bombay High Court. *  DGGI SCN can’t be challenged before reply and adjudication:Chhattisgarh High Court. *  GST input tax credit can’t be denied solely due to supplier’s retrospective registration cancellation: GSTAT. *  GST notice must explain fraud allegations; merely repeating section 74 Is not enough:  Himachal Pradesh High Court. *  Audit detection alone can’t justify GST fraud penalty; specific suppression must be proved: GSTAT. *  GST order uploaded only under ‘Additional Notices’ tab without separate intimation set aside: Calcutta High Court. *  Service Tax appeal can’t be rejected for missing pre-deposit proof when payment is already recorded: CESTAT. *  SGST dept. can’t hear appeal against CGST order: Calcutta High Court. *  Mere dispatch of tax order can’t prove service or make appeal time-barred: CESTAT. *  Dealer incentives can’t be taxed merely on ledger entries: CESTAT. *  DGFT orders quashed for failure to supply DRI letter relied upon in SCN: Bombay High Court. *  GST penalty u/s 122(1A) can’t apply to Pre-2021 transactions; unregistered beneficiaries also covered: Delhi High Court. *  Expired E-way bill caused by wrong PIN code can’t justify GST penalty without intent to evade tax: GSTAT. *  Used railway rails can’t be taxed as track material without proof they are fit for reuse: CESTAT. *  Earlier DGGI notice doesn’t bar separate GST demand on different issue: Delhi High Court. *  ITC dispute involves no question of law: GSTAT directs appeal to Vice-President. *  Earlier DGGI notice doesn’t bar separate GST demand On different issue: Delhi High Court. *  No E-way bill required for interstate goods movement in november 2017: GSTAT quashes detention and penalty.  

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GST UPDATE ON LANDMARK SUPREME COURT DECISION REGARDING SERVICE TAX ON CLUB PART-1:-

GST UPDATE ON LANDMARK SUPREME COURT DECISION REGARDING SERVICE TAX ON CLUB PART-1:-
We all are aware of the tremendous litigation that has been held in past regarding leviability of service tax on services provided by club to its members in view of the ‘mutuality concept’. There have been number of judicial pronouncements rendered by various High Courts denying the leviability of service tax on services provided by club to its members, prominent amongst them being RANCHI CLUB LTD. VS CHIEF COMMISSIONER OF C.E. & S.T., RANCHI ZONE [2012 (26) S.T.R. 401 (JHAR.)] and SPORTS CLUB OF GUJARAT LTD. VS UNION OF INDIA [2013 (31) S.T.R. 645 (GUJARAT)]. These decisions were challenged by the service tax authorities in the Larger Bench of Supreme Court of India and were recently decided by the Hon’ble Larger Bench of the Supreme Court of India. The present update seeks to analyse the conclusion arrived at by the Hon’ble Supreme Court and its applicability in GST era.
 
Background of the High Court decisions:-It is submitted that the Hon’ble Jharkhand in the case of Ranchi Club has relied on the decision given by full member bench of Supreme Court in the case of Joint Commercial Tax Officer Vs Young Men’s Indian Association wherein it was held that in order to levy sales tax, property in goods should pass but in case of club, there was no transfer of property and rather club was acting as an agent on behalf of members and so the transaction could not be considered as sales so as to levy sales tax. The hon’ble Gujarat High Court concluded that in order to levy sales tax or service tax, it is necessary that there should be two persons and the issue whether there are two persons or two legal entities in transactions between club and its members has already been decided by the Hon’ble Supreme Court in the case of Young Men’s Indian Association case whereby the concept of mutuality has been affirmed. Similar view was taken by the Hon’ble Gujarat High Court in the case of Sports Club of Gujarat Ltd. Now, the moot question that arises is the impact of the decision given by the Supreme Court and its applicability in the GST regime.
 
Contentions of Service Tax Authorities before the Supreme Court:-The service tax authorities pleaded before the Hon’ble Supreme Court that the reliance placed by the Jharkhand and Gujarat High Court on the decision given by the Apex Court in the case of Young Men’s Indian Association is misplaced as in service tax laws, the principle of mutuality in case of incorporated entities has been dispensed with. It was pleaded that with the introduction of negative list in service tax w.e.f. 01.07.2012, term ‘person’ was defined under section 65B(37) of Finance Act, wherein person includes “an association of persons or body of individuals, whether incorporated or not”. Likewise, according to section 65B(44) of Finance Act, service means any activity carried out by a person for another for consideration and includes declared service. Hence, two persons are necessary for an activity to be termed as service. Moreover, according to the Explanation 3(a) to the definition of service, “an unincorporated association or a body of persons, as the case may be, and a member thereof shall be treated as distinct persons”.
Reasoning adopted by the Supreme Court:-The judgment was delivered for both positive list tax regime and negative list tax regime separately as follows:-
Service tax liability for the period 16.06.2005 to 30.06.2012:-It was concluded that the definition of ‘club or association’ contained in section 65(25a) of the Finance Act levied tax on any person or body of persons providing services for subscription or any other amount to its members. It is pertinent to note that definition of person was not there in the Finance Act during this period. Moreover, the definition of “club or association” under section 65(25a) of the Finance Act, specifically excluded “any body established or constituted under any law for the time being in force”.  Hence, anybody “established or constituted” by or under any law for the time being in force is not included. Therefore, it was concluded that incorporated clubs or associations (under Companies Act/Cooperative Society Act) were not included in service tax net for this mentioned period. The service tax was payable only by un-incorporated clubs.
Service tax liability post 01.07.2012:-It was held that the definition of service is very wide meaning any activity carried out by a person to another for consideration. Furthermore, the definition of person includes association of persons or body of individuals whether incorporated or not. Now, the question before the Supreme Court was that whether the doctrine of agency, trust and mutuality as held to be applicable in the Sales Tax judgment of Supreme Court in Young Men’s Indian Association was applicable for service tax also or not? It was however mentioned that the analogy that in members’ club, there is no sale by one person to another for consideration as one cannot sell something to oneself would equally apply for services also. Thereafter, the provision contained in the explanation 3(a) to the definition of service, “an unincorporated association or a body of persons, as the case may be, and a member thereof shall be treated as distinct persons” was analysed. It was concluded that this explanation was similarly worded as Article 366(29-A)(e) of the Constitution of India which reads as follows:-
Article 366(29A) tax on sale or purchase of goods includes-
(e) a tax on the supply of goods by any unincorporated association or body of persons to a memberthereof for cash, deferred payment or other valuable consideration
The Supreme Court analysed the term “body of persons” in detail in the judgment of Calcutta Club Ltd. pertaining to sales tax and has held that according to the principle of “ejusdem generis” will apply and the term body of persons used indicates reference to unincorporated body of persons. Therefore, incorporated body of persons will not be covered under the ambit of Article 366(29A) (e) of the Constitution of India. Similarly, it was held that the same principle would apply for analysing the provision contained in explanation 3(a) and so in the negative list era, the incorporated association or body of persons would not be liable to service tax. This is for the reason that the explanation 3(a) used the term “an unincorporated association or body of persons” instead of using the term “person” or the term “an association of persons or body of individuals, whether incorporated or not”. It was concluded that the legislature has continued with the pre-2012 scheme of not taxing members’ club when they are in the incorporated form. The expression “body of persons” may subsume within it persons who come together for a common
purpose, but cannot possibly include a company or a registered cooperative society. Thus, Explanation 3(a) to Section 65B(44) does not apply to members’ clubs which are incorporated.
 
Hence, it was held that the Jharkhand High Court and the Gujarat High Court are correct in following the Supreme Court decision given in the case of Young Men’s Indian Association. It was held that from 2005 onwards, Finance Act does not purport to levy service tax on incorporated clubs.
 
The implication of this judgment in the GST era will be discussed in our next update.
The content of this GST update is for educational purpose only and not intended for solicitation.
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