Is marriage a Social Function or a Religious Function?
WHY this question in DDT? From Birth to death (and perhaps even after that) we are under the tax net and normally one's birth is preceded by a marriage of two other persons. Organising the event of a marriage is a taxable service, providing a mandap for a marriage is a taxable service and erection of a pandal for a marriage is a taxable service. But mandaps and shamianas are taxable basically for social functions. Is marriage, then a social function ?
Shri Brahma Deva said,
"It is well settled position from the time immemorial that, marriage is sacred and sacrament as recognised under Hindu law. It is not a social contract ."
Please don't mistake Brahma Deva for Bhagavan Brahma. The above quote is an extract from the order delivered by GA Brahma Deva, Member CESTAT, in Commissioner of Central Excise vs Krishnapur Mutt - 2003-TIOL-262-CESTAT-BANG
But the Tribunal in observed, "That marriage is a social function is not much in controversy in this case ".
The Government got the Parliament to amend the Statute by the Finance Act 2007, to insert an explanation - "social function includes marriages ".
Recently, the Delhi High Court passed an order in a writ petition praying for issue of a writ, order or direction in the nature of certiorari that:
1. erection of a Pandal/Shamiana for marriage is in furtherance of religious ceremonies, rites and rituals which are to be performed for the religious function and should not be considered as social function for the purpose of service tax.
2. no Service Tax be levied on erection of Pandal/Shamiana for Hindu marriage as it is providing the said activities/services to a religious function and by quashing the said amendments as unconstitutional.
The Counsel for the petitioner raised a singular contention that no service tax can be levied on the erection of “pandal or shamiana, for Hindu marriage is fundamentally a sacrosanct and sacred religious function and can never be treated as a social function to invite the levy of service tax.
The Delhi High Court observed, "If the entire provision is properly understood, it is clearly discernible that Hindu marriage is not treated or regarded a social function per se. If the dictionary clause is appositely appreciated, there can be no trace of doubt that only when a “pandal or shamiana, is used for marriage, it earns the status of “social function"because the service component is involved. It is worth noting, the statute itself postulates that marriage is to be regarded as a social function and full effect has to be given to the same. That apart, the pre-requisite is the use of “pandal or shamiana? and, therefore, the contention raised by the learned counsel that Hindu marriage is not a contract but a sacred institution and hence, no service tax is imposable treating it as a social function has to be repelled and we so do ."
Yet another Writ Petition challenging the levy of Service Tax is dismissed. DDT has been constantly reminding about the futility of challenging a levy that has been passed by Parliament. The litigation only adds up on interest and lawyers' fees and may sometimes even invite a penalty.
We bring you the High Court order today. Please see