TIOL-DDT 1700 · Monday, 26 September 2011 · story 1 of 3

Service Tax on Renting - Retrospective amendment in 2010 is ex abundanti cautela - Larger Bench of Delhi HC

THE much awaited judegment of Larger Bench of Delhi High Court on levy of Service Tax on renting was pronounced on 23rd September 2011. The judgement was carried by TIOL the very next day. The Larger Bench has empathically ruled that the levy was intra vires the constitution and the retrospective amendment in 2010 to the definition of Renting of Immovable property was only by way of ex abundanti cautela, means - an abundance of caution

The crux of the dispute was the competence of Union of India in levying service tax on land and buildings which is a State subject. The Larger Bench has examined this aspect in detail and some of the Principles culled out on levy of tax on Immovable property by States under Entry No 47 of List II and by the Union of India under Entry 97 of List I are:

Levy by States

Levy by Union of India

Under Entry 49 of List II, the State Legislature is competent to impose tax either on lands or buildings or on both. It is basically a tax on property.

The measure of taxation does not affect the nature of taxation and, therefore, the manner of quantification of the levy of service tax has no bearing on the factum of legislative competence.

Entry 49 of List II of the Seventh Schedule contemplates levy of tax on lands and buildings or both as units.

Taxable services can include providing of premises on a temporary basis for organizing any official, social or business function but also other facilities supplied in relation thereto.

The tax on land and building is a fundamental tax resting upon the general ownership of the lands and buildings but would not include a particular act like a transmission of title by gift.

Levy of service tax on a particular kind of service cannot be struck down on the ground that it does not conform to a common understanding of the word "service" as long as it does not transgress any specific restriction embodied in the Constitution.

There is a distinction between a direct tax on the assessee's building as such and a personal tax.

Service tax is a levy on the event of service.

There is a distinction between the elements of tax, namely, the person, thing or activity on which the tax is imposed and the amount of tax.

The concept of service tax is an economic concept.

A tax may imperceptibly be the subject

Service tax is a value added tax which, in turn, is a general tax applicable to all commercial activities involving provision of service.

A tax may imperceptibly be the subject

Value added tax is a general tax as well as destination based consumption tax leviable on services provided within the country.

A tax levied on activity or service rendered having nexus with land or building would not come within the compartment of tax on land and building.

"Consumption of service" as in case of "consumption of goods" satisfies human needs.

With regard to penalty the High Court has left open the same to the Government to examine whether any waiver can be granted.