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Raj Kumar Makkad (Adv P & H High Court Chandigarh)     02 March 2010

Delhi High court’s judgment and subsequent legislation

The judgment in HOME SOLUTION RETAIL INDIA LTD. Versus UOI & ORS. 2009 -TMI - 33136 /14) S.T.R. 433 ( Del. ), 2009 (237) E.L.T. 209 ( Del. ), 2009 (92) RLT 519 ( Del. ), [2009] 20 STT 129 ( DELHI ) was rendered on 18 April 2009 and it has wide publicity also. In this judgment the court has held that the notification is ultravirse the Act and there is no service, there is no value addition in course of renting out property. After this amendment Finance (No.2) Act, 2009 was introduced and enacted. However, no amendment was made in the law. Rather in complete disregard of the judgment of Delhi High Court, revenue attempted to collect tax on rent. Again Delhi High Court was approached and the high Court held that such attempt should not been made because any stay order has not been issued by the Supreme court against its judgment. After this now we find proposals in the Finance Bill to regularize all actions of the revenue and amend law with retrospective effect.
Proposed amendment in the  Finance Bill 2010:

We find the following relevant proposals vide calsues 75 and 76 of the bill (with highlights provide):

 

75. In the Finance Act, 1994,—

(A) in section 65, save as otherwise provided, with effect from such date as the Central Government may, by notification in the Official Gazette, appoint,—

 

Xxx

(h) in sub-clause (zzzz),—

(i) for the portion beginning with the words “to any person” and ending with the words “business or commerce”, the following shall be substituted and shall be deemed to have been substituted with effect from the 1st day of June, 2007, namely:—

 

“to any person, by any other person, by renting of immovable property or any other service in relation to such renting, for use in the course of or, for furtherance of, business or commerce.”;

(ii) in Explanation 1, after item (iv), the following item shall be inserted, namely:—

“(v) vacant land, given on lease or license for construction of building or temporary structure at a later stage to be used for furtherance of business or commerce;”;

 

Validation of action taken under subclause (zzzz) of clause (105) of section 65.

76. Any action taken or anything done or omitted to be done or purported to have been taken or done or omitted to be done under sub-clause (zzzz) of clause (105) of section 65 of the Finance Act, 1994, at any time during the period commencing on and from the 1st day of June, 2007 and ending with the day, the Finance Bill, 2010 receives the assent of the President, shall be deemed to be and deemed always to have been, for all purposes, as validly and effectively taken or done or omitted to be done as if the amendment made in sub-clause (zzzz) of clause (105) of section 65, by sub-item (i) of item (h) of sub-clause (5) of clause (A) of section 75 of the Finance Act, 2010 had been in force at all material times and, accordingly, notwithstanding anything contained in any judgment, decree or order of any court, tribunal or other authority,—

(a) any action taken or anything done or omitted to be taken or done in relation to the levy and collection of service tax during the said period on the taxable service of renting of immovable property, shall be deemed to be and deemed always to have been, as validly taken or done or omitted to be done as if the said amendment had been in force at all material times;

 

(b) no suit or other proceedings shall be maintained or continued in any court, tribunal or other authority for the levy and collection of such service tax and no enforcement shall be made by any court of any decree or order relating to such action taken or anything done or omitted to be done as if the said amendment had been in force at all material times;

 

(c) recovery shall be made of all such amounts of service tax, interest or penalty or fine or other charges which may not have been collected or, as the case may be, which have been refunded but which would have been collected or, as the case may be, would not have been refunded, as if the said amendment had been in force at all material times.

Explanation.—For the removal of doubts, it is hereby declared that no act or omission on the part of any person shall be punishable as an offence which would not have been so punishable had this amendment not come into force.

 

The suggestion of author is now implemented:

From above amendment proposed vide clause 75 in section 65(105)(zzzz) one can notice that the suggestion which the author placed after the Finance Bill 2007 was circulated, is now finding place in the law. The way in which amendments are proposed, clearly shows that we need no education of law, and courts. Because the law is totally uncertain and one cannot read law as it stands at any particular time because it can be amended at any time in future.

 

Looking at old published article author feels that his education in law was good and could be very useful if his suggestions were implemented on time. However, when we look at the amendment  one has to be sad to know that there is no use of studies in law and their application.

Now author wonders as to

Why he studied tax law ?

Is there any need to study law particularly tax laws?

Why not to just follow what the tax officer want?
 



Learning

 3 Replies

Adinath@Avinash Patil (advocate)     02 March 2010

VERY GOOD RAJ.

Madan Mohan Parekh (Advocate)     02 March 2010

It is not only Service Tax ,in all tax laws by way of amendment with retrospective eefect , effect of vedicts by the court is nullified .This is not proper . Our leaders reprenting us in parliament should be feeded back in this respect and an efferts should be made to stop this.

Vineet (Director)     02 March 2010

It is quite expected move. Surprisingly, it has been brought in the statute after skipping last year's budget.

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