The Kadaplamattom Service Co-Operative Bank LTD.No.2633 vs. Union Of INDIA

Original PDF →
WP(C)/1322/2017HC KeralaGSTCNR KLHC01049269201727 January 2022Bench: HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS11 pages
For Petitioner: SRI.SHAJI THOMAS, SRI.H.KIRANFor Respondent: SRI.S.MANU, ASGI, SMT.THANUJA ROSHAN, SC
AI SummaryAllowed

Facts

The petitioners, primary credit societies, are challenging orders imposing service tax for their 'Group Deposit and Credit Scheme' (chit transactions) for the periods July 1, 2012, to March 31, 2013, and April 1, 2013, to March 31, 2014. The authorities alleged that these schemes constituted cash management and the commission received was liable to service tax under 'Banking and Other Financial Services'. The petitioners contended that chit transactions were not subject to service tax until 2015, making the imposition for the disputed periods unlawful. They relied on decisions from the Delhi High Court and Andhra Pradesh High Court.

Held

The Court held that for the period from July 2012 to June 2015, no service tax could be imposed on chit transactions. This conclusion was based on the binding decisions of the Supreme Court in Union of India and Others v. M/s.Margadarshi Chit Funds (P) Ltd. and this Court's own decision in All Kerala Association of Chit Funds and Others v. Union of India and Others. The Supreme Court, in its judgment, had explicitly stated that from July 1, 2012, to June 14, 2015, no service tax was payable on chit fund business. The Court further noted that the legislature amended the Finance Act, 1994, through the Finance Act, 2015, to include these transactions, implying they were not taxable prior to the amendment. Consequently, the imposition of service tax and consequential penalties on the petitioners for the period in question was deemed unsustainable. The Court allowed the writ petitions and set aside the impugned orders to the extent they imposed service tax, penalties, and cess.

Key Issues

1. Whether the 'Group Deposit and Credit Scheme' (chit transactions) conducted by the petitioners are liable to service tax for the period from July 1, 2012, to March 31, 2014, under the Finance Act, 1994? Petitioner's contention: The petitioners argued that their chit transactions were not liable to service tax until 2015, and therefore, imposing service tax for the period in question was without legal authority. They cited the Delhi High Court's decision in Delhi Chit Fund Association v. Union of India and Others and the Andhra Pradesh High Court's decision in A.P. Federation of Chit Funds v. Union of India. Revenue's contention: The respondents (Union of India and Assistant Commissioner) contended that the issue was covered by this Court's decision in All Kerala Association of Chit Funds and Others v. Union of India and Others, and the Supreme Court's decision in Union of India and Others v. M/s.Margadarshi Chit Funds (P) Ltd. They acknowledged that these decisions clarified that chit transactions became liable to service tax from 2015 onwards.

Sections Cited

Section 65B

AI-generated summary — verify with the full judgment below

Heard together (3 matters)

WP(C) NO. 1321 OF 2017
W.P(C)Nos.1322/2017
WP(C) NO. 1390 OF 2017

Read from the judgment's own cause title. This page is filed under one of them.

Cause title — parties, addresses and appearances
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS THURSDAY, THE 27TH DAY OF JANUARY 2022 / 7TH MAGHA, 1943 WP(C) NO. 1321 OF 2017 PETITIONER: THE VAYALA SERVICE CO-OPERATIVE BANK LTD NO.2175 VAYALA PO, KOTTAYAM DISTRICT-686 587, REPRESENTED BY ITS SECRETARY. BY ADVS. SRI.SHAJI THOMAS SRI.H.KIRAN RESPONDENTS: 1 UNION OF INDIA REPRESENTED BY THE SECRETARY, MINISTRY OF FINANCE, NORTH BLOCK, NEW DELHI-110 001. 2 THE ASST. COMMISSIONER OF CUSTOMS CENTRAL EXCISE AND SERVICE TAX, KOTTAYAM DISTRICT, V PUBLISHERS BUILDING, SREENIVASA IYER ROAD, KOTTAYAM-686 001. 3 THE SUPERINTENDENT OF CUSTOMS CENTRAL EXCISE AND SERVICE TAX, PALA RANGE, 3RD FLOOR, MAREENA TOWERS, KATTAKKAYAM ROAD, PALA-686 587. BY ADVS. SRI.S.MANU, ASGI SMT.THANUJA ROSHAN, SC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27.01.2022, ALONG WITH W.P(C)Nos.1322/2017 AND 1390/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No.1321, 1322 & 1390/17 -:2:- IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS THURSDAY, THE 27TH DAY OF JANUARY 2022 / 7TH MAGHA, 1943 WP(C) NO. 1322 OF 2017 PETITIONER: THE KADAPLAMATTOM SERVICE CO-OPERATIVE BANK LTD.NO.2633 KADAPLAMATTOM P.O., KOTTAYAM DISTRICT-686 571, REPRESENTED BY ITS SECRETARY. BY ADVS. SRI.SHAJI THOMAS SRI.H.KIRAN RESPONDENTS: 1 UNION OF INDIA REPRESENTED BY THE SECRETARY, MINISTRY OF FINANCE, NORTH BLOCK, NEW DELHI-110 001. 2 THE ASST. COMMISSIONER OF CUSTOMS CENTRAL EXCISE AND SERVICE TAX, KOTTAYAM DIVISION, V PUBLISHERS BUILDING, SREENIVASA IYER ROAD, KOTTAYAM-686 001. 3 THE SUPERINTENDENT OF CUSTOMS CENTRAL EXCISE AND SERVICE TAX, PALA RANGE, 3RD FLOOR, MAREENA TOWERS, KATTAKKAYAM ROAD, PALA-686 587. BY ADVS. SRI.S.MANU, ASGI SMT.THANUJA ROSHAN, SC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27.01.2022, ALONG WITH WP(C)Nos.1321/2017 AND 1390/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No.1321, 1322 & 1390/17 -:3:- IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS THURSDAY, THE 27TH DAY OF JANUARY 2022 / 7TH MAGHA, 1943 WP(C) NO. 1390 OF 2017 PETITIONER: THE EZHACHERY SERVICE CO-OPERATIVE BANK LTD. NO.1548 EZHACHERRY P.O., KOTTAYAM DISTRICT-686 651 REPRESENTED BY ITS SECRETARY. BY ADVS. SRI.SHAJI THOMAS SRI.H.KIRAN RESPONDENTS: 1 UNION OF INDIA REPRESENTED BY THE SECRETARY, MINISTRY OF FINANCE, NORTH BLOCK, NEW DELHI-110 001. 2 THE ASSISTANT COMMISSIONER OF CUSTOMS CENTRAL EXCISE AND SERVICE TAX, KOTTAYAM DIVISION, V PUBLISHERS BUILDING, SREENIVASA IYER ROAD, KOTTAYAM-686001. 3 THE SUPERINTENDENT OF CUSTOMS CENTRAL EXCISE AND SERVICE TAX, PALA RANGE, 3RD FLOOR, MAREENA TOWERS, KATTAKKAYAM ROAD PALA-686587. BY ADVS. SRI.S.MANU, ASGI SMT.THANUJA ROSHAN, SC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27.01.2022, ALONG WITH WP(C)Nos.1321/2017 AND 1322/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No.1321, 1322 & 1390/17 -:4:- BECHU KURIAN THOMAS, J. ----------------------------------------------- W.P.(C) Nos.1321, 1322 & 1390 of 2017 ------------------------------------------------ Dated this the 27th day of January, 2022

JUDGMENT Petitioners in these writ petitions are primary credit societies registered under the provisions of the Kerala Co- operative Societies Act, 1969. The issue raised in these writ petitions is whether petitioners can be made liable for service tax for the conduct of chit transactions for the period from 01.07 2012 to 31.03.2013 and 01.04.2013 to 31.03.2014. 2. Pursuant to a show-cause notice alleging that the 'Group Deposit and Credit Scheme' (for short, 'the Scheme') of the co-operative banks are in the nature of cash management and the monetary commission received by the bank is liable to service tax under the head 'Banking and Other Financial Services', an order in original was issued as Ext.P1, imposing service tax upon the petitioners for the period from 01.07.2012 to 31.03.2013 and 01.04.2013 to 31.03.2014. 3. The main contention raised by the petitioners is that the Scheme conducted by them, which is essentially a chit

W.P.(C) No.1321, 1322 & 1390/17 transaction, was not liable to service tax until 2015 and that imposing service tax on the chit transactions conducted by the petitioners for the said period is without authority.

4.

Petitioners also relied upon the decision of the Delhi High Court in Delhi Chit Fund Association v. Union of India and Others (W.P.(C) No.4512 of 2012) as well as the decision in A.P. Federation of Chit Funds v. Union of India [2009 (13) STR 350 (AP)].

5.

A statement has been filed on behalf of respondents 2 and 3 in which it is stated that the issue involved in the writ petitions is covered by the decision in All Kerala Association of Chit Funds and Others v. Union of India and Others [(2018) 55 GSTR 389] and the decision of the Supreme Court in Union of India and Others v. M/s.Margadarshi Chit Funds (P) Ltd. Etc. [(2017) 13 SCC 806]. For better comprehension, the averments in paragraph 3, 4, 6 and 7 are extracted below:

“3. The issues raised in this writ petition was considered in detail by this Hon'ble Court in All Kerala Association of Chit Funds & Another v. Union of India & Others (W.A. No: 273 of 2013 against the judgement in W.P.(C) No: 32097/2007, dated 19.10.2012). In its judgment dated 14.03.2018 in the writ appeal a division bench of this Hon'ble Court held that chit transaction becomes liable to tax under the Finance Act, from 2015 onwards.

W.P.(C) No.1321, 1322 & 1390/17 4. …...............Thus, it is now clear that the activities of the petitioner have become liable to service tax under the Finance Act, 1994 from the time of the amendment carried out in sub-section 44 of Section 65B of the Finance Act, 2015. 6. The question as to whether the petitioner would be liable to pay service tax for the period between 01.07.2012 and 31.03.2014 was considered by this Hon'ble Court in Exhibit R-1 judgment. In Paragraph 5 of Exhibit R-1, this Hon'ble Court referring to the decision of the Hon'ble Apex Court in Union of India v. Margadarshi Chit Funds (P) Ltd., reported in AIR 2017 SC 3730, held, “The issue agitated by the Revenue is as to whether between 2012 and 2015 there could be tax levied on the chit transactions deeming it to be a service, which has not been excluded in the definition not included in the negative list. To answer this, we just have to notice para 21 of the decision of the Honourable Supreme Court, which is extracted below: "The aforesaid historical background would demonstrate that admittedly upto June 14, 2007, chit fund business was not exigible to service tax. Likewise, from July 01, 2012 to June 14, 2015, no service tax was payable

.........” Relying on the above observation of the Supreme Court, this Court went on to hold that: “Hence, the issue whether between 2012 and 2015, the tax can be levied on the chit transactions is beyond the scope of dispute. The Honourable Supreme Court having held in the negative, the issue is no longer res integra.”

7.

Further, this Hon'ble Court went on to clarify that, “The legislature felt the need for inclusion of the transactions within the fold of service and hence amended the Finance Act, 1994 by Finance Act, 2015. As a corollary, it has to be W.P.(C) No.1321, 1322 & 1390/17 understood that it was not taxable prior to the amendment.” In the light of this clarification, the service tax assessed by the 2nd respondent for chit transactions conducted by the petitioner society during the period between 01.07.2012 to 31.03.2014, becomes unsustainable.”

6.

I have heard the contentions raised by Sri.Shaji Thomas, the learned counsel for the petitioners, Sri.S.Manu, learned Assistant Solicitor General of India for the first respondent as well as Smt.Thanuja Roshan George, learned counsel for respondents 2 and 3. 7. In view of the binding decisions of the Supreme Court in M/s.Margadarshi Chit Funds' case (supra) as well as the conclusion arrived at by this Court in All Kerala Association of Chit Funds' case (supra), the issue involved in these writ petitions need no elaborate discussion. Learned counsel for the respondents also concedes to the fact that the issue is wholly covered by the said decisions.

8.

Thus, for the period from July 2012 to June, 2015, no service tax can be imposed on chit transactions. The period involved in these three writ petitions falls within the aforesaid years and hence petitioners cannot be mulcted with any liability for service tax.

9.

Accordingly, following the decisions in W.P.(C) No.1321, 1322 & 1390/17 M/s.Margadarshi Chit Fund's case (supra) as well as the conclusion arrived at by this Court in All Kerala Association of Chit Funds' case (supra), the writ petitions are allowed and Ext.P1 order in original in these three writ petitions to the extent it imposes service tax and other penalty on the GDCS conducted by the petitioners and taxed under the heard “Banking and Other Financial Services” are set aside. The consequential penalties and other cess imposed are also set aside. BECHU KURIAN THOMAS JUDGE vps

W.P.(C) No.1321, 1322 & 1390/17

Appendix — schedule of exhibits
APPENDIX OF WP(C) 1321/2017 PETITIONER'S/S' EXHIBITS EXT.P1 TRUE PHOTOCOPY OF THE ORDER NO.53 AND 54/2015/ST DATED 15-12-2015 ISSUED BY THE 2ND RESPONDENT. EXT.P2 TRUE PHOTOCOPY OF THE NOTIFICATION NO.20/2012-ST DATED 5-6-2012. EXT.P3 TRUE PHOTOCOPY OF NOTIFICATION NO.26/2012-ST DATED 20-6-2012 ISSUED BY THE 1ST RESPONDENT. EXT.P4 TRUE PHOTOCOPY OF THE JUDGMENT DATED 23-4-2013 IN W.P.(C) NO.4512/2012 OF THE HON'BLE HIGH COURT OF DELHI. EXT.P5 TRUE PHOTOCOPY OF THE ORDER DATED 7-1-2014 IN SLP(C) NO.24998 OF 2013. EXT.P6 TRUE PHOTOCOPY OF THE DECISION REPORTED IN [2015]53 TAXMANN.COM 237 (SC) EXT.P7 TRUE PHOTOCOPY OF THE ORDER DATED 29-12-2016 ISSUED BY THE 3RD RESPONDENT. EXT.P8 TRUE PHOTOCOPY OF THE ORDER IN APPEAL NO.179/ST/CHN/2016-17 DATED 26/4/2018 PASSED BY THE ADDITIONAL DIRECTOR GENERAL, NACIN, COCHIN/COMMISSIONER (APPEALS), COCHIN W.P.(C) No.1321, 1322 & 1390/17 -:10:- APPENDIX OF WP(C) 1322/2017 PETITIONER'S/S' EXHIBITS EXT.P1 TRUE PHOTOCOPY OF THE ORDER NO.56 AND 57/2015/ST DATED 18-12-2015 ISSUED BY THE 2ND RESPONDENT. EXT.P2 TRUE PHOTOCOPY OF THE NOTIFICATION NO.20/2012-ST DATED 5-6-2012. EXT.P3 TRUE PHOTOCOPY OF NOTIFICATION NO.26/2012-ST DATED 20-6-2012 ISSUED BY THE 1ST RESPONDENT. EXT.P4 TRUE PHOTOCOPY OF THE JUDGMENT DATED 23-4- 2013 IN WP(C). NO.4512/2012 OF THE HON'BLE HIGH COURT OF DELHI. EXT.P5 TRUE PHOTOCOPY OF THE ORDER DATED 7-1-2014 IN SLP(C) NO.24998 OF 2013 EXT.P6 TRUE PHOTOCOPY OF THE DECISION REPORTED IN [2015] 53 TAXMANN.COM 237 (SC) EXT.P7 TRUE PHOTOCOPY OF THE ORDER DATED 29-12-2016 ISSUED BY THE 3RD RESPONDENT. EXT.P8 TRUE PHOTOCOPY OF THE ORDER DATED 26/04/2018 IN APPEAL NO.179/ST/CHN/2016/17 FILED BY ANOTHER SERVICE CO-OPERATIVE BANK PASSED BY THE ADDITIONAL DIRECTOR GENERAL, NACIN, COCHIN/COMMISSIONER (APPEALS), COCHIN. RESPONDENT'S/S' EXHIBITS: ANNEXURE R1 TRUE COPY OF THE JUDGMENT OF HIGH COURT OF KERALA IN ALL KERALA ASSOCIATION OF CHIT FUNDS & ANOTHER V. UNION OF INDIA & OTHERS (W.A. NO.273 OF 2013 AGAINST THE JUDGMENT IN W.P.(C) NO.32097/2007, DATED 19.10.2012 W.P.(C) No.1321, 1322 & 1390/17 -:11:- APPENDIX OF WP(C) 1390/2017 PETITIONER'S/S' EXHIBITS EXT.P1 TRUE PHOTOCOPY OF THE ORDER NO.63 AND 64/2015/ST DATED 18.12.2015 ISSUED BY THE 2ND RESPONDENT. EXT.P2 TRUE PHOTOCOPY OF THE NOTIFICATION NO.20/2012- ST, DATED 5.6.2012. EXT.P3 TRUE PHOTOCOPY OF NOTIFICATION NO.26/2012-ST DATED 20.6.2012 ISSUED BY THE IST RESPONDENT. EXT.P4 TRUE PHOTOCOPY OF THE JUDGMENT DATED 23.4.2013 IN WPC NO.4512/2012 OF THE HON'BLE HIGH COURT OF DELHI. EXT.P5 TRUE PHOTOCOPY OF THE ORDER DATED 7.1.2014 IN SLP(C)NO.24998 OF 2013. EXT.P6 TRUE PHOTOCOPY OF THE DECISION REPORT IN [2015] 53 TAXMANN.COM 237(SC). EXT.P7 TRUE PHOTOCOPY OF THE ORDER DATED 29.12.2016 ISSUED BY THE 3RD RESPONDENT. EXT.P8 TRUE PHOTOCOPY OF THE ORDER DATED 15.10.2018 IN APPELA FILED BY THE PETITIONER APPEAL NO.39/ST/CHN/2017 PASSED BY THE ADDITIONAL DIRECTOR GENERAL, NACIN, COCHIN/COMMISSIONER (APPEALS), COCHIN. RESPONDENT'S/S' EXHIBITS: ANNEXURE R1 TRUE COPY OF THE JUDGMENT OF HIGH COURT OF KERALA IN ALL KERALA ASSOCIATION OF CHIT FUNDS & ANOTHER V. UNION OF INDIA & OTHERS (W.A. NO.273 OF 2013 AGAINST THE JUDGMENT IN W.P.(C) NO.32097/2007, DATED 19.10.2012

Reproduced from the public record of the Kerala High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.