Monday, 20 May 2013

Decision of the Delhi HC in the case of Delhi Chit Fund Association -The first judicial pronouncement pertaining to the new service tax regime

 


The Delhi HC in a recent decision examined the issue of applicability of service tax on the services rendered by the foreman in a business chit fund under the new service tax regime effective from July 1, 2012 and in this regard undertook a detailed examination of the definition of “Service”. This being the first instance where an issue under the new service tax regime has been analyzed by a judicial forum of the stature of a High Court, the observations and the approach adopted by the Delhi HC assumes immense significance


Facts of the case:


· Delhi Chit Fund Association (‘Petitioners’), a group of chit fund companies in Delhi, filed a writ petition in the HC challenging the validity of the Notification No 26/2012-ST dated June 20,2012 (‘the Notification’)


· Serial No. 8 of the Notification provided partial exemption to the extent of 30 percent of the consideration received for services rendered in relation to chit funds; thereby taxing the remaining consideration


· However, the Petitioners were of the view that the services provided by a foreman in connection with the chit fund business were not taxable in terms of the definition of ‘service’ as provided under Section 65B (44) of the Finance Act, 1994 (“Finance Act”)


Issue:


The question of determination before the HC was whether the services of a foreman (the person managing the operations of a chit fund) offered in relation to conducting a chit business is a taxable service for the purpose of section 65B(44) Finance Act wef July 1,2012


Contentions of the Petitioner:


The Petitioner relied on the following legal grounds to support the argument that the services provided by a foreman in connection with the chit fund business are not chargeable to service tax:


· Section 65B (44) of the Finance Act defines ‘service’ as an activity carried out by a person for another person for consideration. However, a transaction in money is merely a receipt and payment of money and does not involve performance of any service element


· The definition of service specifically excludes transactions in money and actionable claims. There is no dispute regarding the fact that a transaction in money is not a service in itself as something which is not a service cannot be excluded from the definition of ‘service’


· Therefore, the exclusionary part in the definition of ‘service’ is present for the purpose of excluding the activities performed for facilitating the transactions in money. Any other interpretation would make the exclusion redundant


Judgment of the HC:


· The HC discussed the definition of ‘service’ and the scope of the exclusions to the definition of ‘service’. As regards the latter, the following two possible interpretations were found to be possible:


- The scope of exclusions is restricted to the activities specified therein. The purpose of specific exclusions is to make it abundantly clear that the specified activities are excluded from the definition of ‘service’ (and consequently, potential service tax);


- The scope of exclusions is intended to cover the activities in relation to the specified activities as the specified activities per se do not qualify as ‘service’ in the first place. If only the activities specified in the exclusions per se are considered to be excluded from the definition of ‘service’ (and consequently, potential service tax), the specific exclusions would be rendered redundant


The HC adopted the second interpretation and was of the view that the scope of the exclusion ‘transactions in money and actionable claim’ from the definition of ‘service’ cannot be restricted to the said activity per se but it also covers the activities in relation to ‘transactions in money and actionable claim’.


· It was observed that the purpose of a specific exclusion of ‘transactions in money’ would be rendered redundant if it is restricted only to ‘transactions in money’ and not include the activities relating thereto. Since ‘transactions in money’ per se do not qualify as ‘service’ in the first place, what is specifically excluded are the services in connection with the ‘transactions in money’


· The HC analyzed the scope of the exclusion ‘transaction in money’ from the definition of ‘service’ with the aid of Explanation 2 to Section 65B(44) which specifically provided for keeping out the activities relating to conversion of currency, usage of money or change in its denomination from ‘transactions in money’ and thus, making such services potentially liable to service tax. This Explanation was interpreted to mean that any activity in relation to a transaction in money is outside the definition of ‘service’ barring the ones specified in the said Explanation. Therefore, the foreman services under consideration were held not to be liable to service tax


· The HC, after considering the definition of ‘service’ and the scope of the exclusion of ‘transactions in money’ from the definition of ‘service’, held that the services provided in relation to the chit fund business are not liable to service tax. Before concluding, the HC also considered paragraph 2.8.2 of the Education Guide issued by the CBEC which discussed whether transactions under a chit fund business would qualify under ‘transaction only in money’. The HC held that the foreman services rendered in connection with a chit fund would not be taxable which is in direct contradiction to the explanation given in the said paragraph of the Education Guide – however, the HC refused to express any opinion on the correctness of the aforesaid paragraph of the Education Guide.


· The HC also quashed Serial No. 8 of the Notification basis the decision taken in the present case as there cannot be any abatement for a service which is not taxable in the first place and thus, the very existence of such an abatement was redundant

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