Tuesday 8 October 2019

Taxability of supplies made by Clubs to its members




3-Judge Bench of the Supreme Court has held that no sales tax or service tax is leviable  with respect to supplies made by incorporated clubs to its members.   


Facts
A reference was made by a Division Bench of the Supreme Court in State of West Bengal v.  Calcutta Club Limited [(2017) 5 SCC 356] to the Larger Bench to answer whether the doctrine  of mutuality is still applicable to incorporated clubs after the 46th Amendment to Article  366(29-A) of the Constitution of India. The reference was made in the context of applicability  of sales tax under the West Bengal Sales Tax Act, 1994. However, in the same batch, the  Supreme Court was also concerned with the applicability of the principle of mutuality  under the service tax law.
Mr. V. Lakshmikumaran represented several assessees in the service tax appeals.
Principle of mutuality
The six-judge bench of the Supreme Court in Joint Commercial Tax Officer, Harbor Division, -  II Madras v. The Young Men’s Indian Association, Madras and Ors. [1970 (1) SCC 462] had  applied the principle of mutuality in respect of incorporated clubs and held that supply of  various preparations by a club to its members would not involve a transaction of sale. It was  held that if the club even though a distinct legal entity is only acting as an agent for its  members in matter of supply of various preparations to them, no sale would be involved as  the element of transfer is completely absent.
High Court Order
Sales Tax: The Calcutta High Court held that the principle of mutuality continues to apply  with respect to incorporated clubs even after the 46th Amendment to Article 366(29-A) of  the Constitution of India. Accordingly, the supplies of food and other articles by Calcutta  Club to its members was held to be outside the scope of the West Bengal Sales Tax Act, 1994.

Service Tax: The High Court of Jharkhand and the High Court of Gujarat in Ranchi Club Ltd[2012 (26) S.T.R. 401 (Jhar.)] & Sports Club of Gujarat Ltd. [2013 (31) S.T.R. 645 (Guj.)] had held  that the principle of mutuality as laid down by the Supreme Court in Young Men’s Indian  Association will apply equally to service tax. Consequently, it was held that clubs cannot  be

said to be providing services to its members and the demand of service tax under the  category of club or association service was set aside.
Supreme Court Judgment
The Supreme Court in its judgement dated 3-10-2019 answered the reference as under:
(1)The doctrine of mutuality continues to be applicable to incorporated and unincorporated  members’ clubs after the 46th Amendment adding Article 366(29-A) to the Constitution of  India.
(2)Young Men’s Indian Association and other judgments which applied this doctrine continue  to hold the field even after the 46th Amendment.
(3)Sub-clause (f) of Article 366(29-A) has no application to members’ clubs.
Consequently, it was held that no sales tax or service tax is leviable under the category of  club or association with respect to services provided by incorporated clubs to its members.
The Supreme Court has further held that even post 01.07.2012 under the negative list regime,  no service tax is leviable with respect to services provided by an incorporated club to its  members as the expression ‘body of persons’ will not cover incorporated clubs.
Appeal by department dismissed
The Civil Appeals filed by the department were dismissed and the impugned orders passed  by the High Court /Tribunal were upheld.
Implications
The judgment of the Supreme Court is important for all pending service tax demands on  clubs or associations. Further, it is also important to understand the applicability of this  principle under the Goods and Services Tax regime. It is also worthwhile to examine  whether clubs can claim any refund of service tax paid by them.

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