23 03 2015
Monday
THE least initial deviation from the truth is multiplied later a thousand fold that, someday, the deviation becomes the truth!
A peep into history:
The Daelim Dilemma: In the infamous Daelim Industrial Co case - 2003-TIOL-110-CESTAT-DEL, the Tribunal held that a composite contract cannot be dissected rather vivisected to levy service tax on the service component. This decision was affirmed by the Supreme Court. Then came the decision of the now famous Larsen & Toubro case - 2006-TIOL-490-CESTAT-MUM where the Tribunal went further and held that even if there are amounts attributable to individual services, the settled position of law is that a works contract cannot be vivisected.
Government doesn't keep quiet in such situations. In 2007 budget the Government introduced service tax on works contract. In para 154 of his Budget speech, the Finance Minister said,
State Governments levy a tax on the transfer of property in goods involved in the execution of a works contract. The value of services in a works contract should attract service tax. Hence, I propose to levy service tax on services involved in the execution of a works contract.
This would clearly mean that this was a new tax and was not taxed earlier, but the babus have different notions about the Law, Parliament and Finance Minister.
Even the TRU letter of 2007 mentioned ‘execution of works contract' as a new service in continuation of the policy of widening the service tax base.
Somehow an opinion gathered strength in the department that this works contract service which was brought under the service tax net with effect from 1.6.2007 was always taxable under different headings like construction, erection, commissioning etc., If it was already taxable, what was the need to specifically bring it in the budget and make the FM announce it as a new tax?
Don't ask embarrassing questions - yours is not to question why, yours is but to pay and die.
Any way the question and SCNs and orders and appeals made the rounds in all possible forums and different judgements were delivered by learned adjudicators. In one such voyage, the matter got referred to a Five Member Bench of the CESTAT and the Five Member Bench gave its verdict last week.
The Larger Bench had judgements from three High Courts, to consideron this issue.
The Delhi High Court in the case of GD Builders - 2013-TIOL-908-HC-DEL-ST, held that Service tax can be levied on the service component of any contract involving service with sale of goods etc.
The Karnataka High Court in Turbotech case - 2010-TIOL-498-HC-KAR-ST held that works contract service can be taxed only from 1.6.2007.
The Madras High Court in Strategic Engineering - 2011-TIOL-547-HC-MAD-ST held, the respondent has demanded the service tax from the petitioner, by treating it to be carrying on business for execution of work Contract. This plea of the respondent deserves to be noticed to be rejected, as the work contract was, first time, included under 65(105) (zzzza) with effect from 1st June 2007.
Thus different opinions prevail with different benches of the High Court as well as Tribunal.
It is in this situation that the Five Member Larger Bench gave its verdict. Unfortunately it was a divided Bench with the two Judicial Members on one side and the three Technical Members on the other - coincidence perhaps.
The President wrote the minority judgement, which is a must read for any student of law, especially constitutional law and tax laws, for its sheer erudition, brilliance, and deep understanding of the Constitution, the tax laws and the principles of interpretation. Maybe we don't deserve such brilliance in a Tribunal like the CESTAT.
The Legislative boundaries - the foundational premises : The President wrote,
"it is clear that powers to make laws with respect to any of the matters in the List authorized to the particular legislative level, is exclusive. Abstinence by Parliament or a State Legislature, from legislating at all or to the limit of its exclusively allocated powers would not have the effect of transferring to the other legislative level the field exclusively assigned to the abstaining legislature. The corollary of such exclusivity is that if Parliament or the legislature of a State fails to legislate, at all or to the full limits of its allocated powers, such failure does not augment pro-tanto powers of the other legislature. The Constitution does not countenance delegation (of legislative powers), expressly or by abstinence in exercise thereof, by Parliament to State legislatures or vice-versa (subject of course to provisions inter alia such as in Articles 252 and 253).
The position is equally well settled, that residuary legislative power stands allocated to the Union under Entry 97 of List I r/w Art. 248 and that the residuary allocation does not cover fields of legislation (whether general or pertaining to taxing powers) elsewhere enumerated in Lists I, II & III of the Seventh Schedule; that Article 248 r/w Entry 97 is the last refuge, only when all Entries in the three Lists are absolutely exhausted and only if the subject-matter cannot be comprehended in any Entry in the three Lists.
Absent specific enumeration of a legislative field (authorizing levy and collection of taxes on services) either in Lists I or II, such authority is traceable to the residuary powers of legislation authorized to the Union qua Article 248 read with Entry 97 of List I. The legislative field, Taxes on the sale or purchase of goods other than newspapers, subject to the provisions of entry 92 A of List I is assigned to States, under Entry 54, List II.
All power, authority or jurisdiction consecrated under or qua the constitutional grant is limited by limitations, conditions or boundaries expressed in the organic charter, inherent therein or implied therefrom. While plenary within the scope of their assigned powers, the Union and State legislatures are nevertheless limited by the distribution of powers assigned and the within the compass of fields/heads of legislation enumerated in the three Lists, as to the subject-matters upon which the Union or State legislatures (or concurrently, under List III) may legislate. Since under our federal arrangement, allocation of taxing powers (to the Union and to States) is exclusive and not concurrent, there is no authority consecrated (except to the extent specified in the Constitution), either to the federal (Union) or the provincial (State) legislature(s), to overlap, smother, swamp or trench upon taxing powers allocated to the other level.
Thus it is, that a fiscal exertion by one level of legislation must be precisely designed and so calibrated to avoid encroachment, poaching into or trenching upon the authorized and delineated field(s) allocated to another level. Harvesting revenue, by levy and collection of taxes qua legislation by Parliament must therefore clearly avoid encroachment into the field(s) authorized to States; and vice-versa."
We wish, more people understood these foundational premises.
The President observed that G. D. Builders decision is and with great respect to the formidable weight accorded to a jurisdictional High Court, in error on per incuriam and sub silentio grounds. He observed that the Karnataka and Madras High Courts, in Turbotech Precision Engineering Pvt. Ltd. and in Strategic Engineering Pvt. Ltd . have clearly concluded that a works contract is not leviable to service tax prior to 01-06-2007. And he was inclined to follow those decisions.
He concluded that " Only since the insertion of sub-clause (zzzza) in clause (105) of Section 65, w.e.f 01-06-2007, complemented by the amended 2006 Rules (inserting Rule 2-A therein) and the 2007 Composition Rules, that the requisite and appropriate statutory framework, for charging, levy, collection and assessment of Service Tax, supported by appropriate computation/valuation machinery on a works contract stands incorporated. This framework defines ‘works contract' (in the Act) by clearly enacting the legislative recognition that this distinct species of contractual arrangements inheres components of sale of goods which fall within the (exclusive) taxation domain of States, for levy of sales tax."
The Member, Judicial agreed with the President, but the three Technical Members did not agree. They held that GD Builders was binding on the Tribunal and did not find the Turbotech and Strategic Engineering cases relevant.
So, the Larger Bench by a majority of 3-2 held that Service elements in a composite (works) contract (involving transfer of property in goods and rendition of services), where such services are classifiable under "Commercial or Industrial Construction"; "Construction of Complex" or "Erection, Commissioning or Installation" (as defined), are subject to levy of service tax even prior to (01.06.2007) insertion of sub-clause (zzzza) in Section 65(105) of the Finance Act, 1994 .
We bring you this large judgement (220 pages) today. Please see Breaking News.
Inexorable Pathology?
THE President noted that there are many appeals pending in CESTAT where adjudicating authorities had interpreted Section 67 as enjoining the total consideration received under composite transactions by a service provider to be the taxable value and have rejected claims for exclusion of the value of accretion sale of goods.
This, he calls as the inexorable pathology which results on accommodating a minimalistic legislative/statutory framework administered by and under a maximized executive discretion albeit of the quasi judicial variety.
Notification No. 12/2013, exempted the value of goods and materials sold. This, the President says proves that the Central Government was clearly of the view that the value of goods and materials sold by a service provider to the recipient of service during the course of provision of a taxable service is included in the taxable value under Section 67. It would be incredulous to assume that pure sale transactions were sought to be excluded by these exemption notifications, since a transaction of sale of goods simplicitor (whether intra-State or inter-State) is always (even prior to the 46th Amendment), beyond the legislative scope of the Union's residuary legislative powers.
This is perhaps the inevitable consequence of relegating constitutional limits on legislative powers problematics to discretionary executive curatives. Precedents caution against such interpretive extravagances;
If revenue's contention was correct, insertion of Works Contract Service in Finance Act, 1994 would have been unnecessary:
The learned Technical Members, who differed with him, did not elaborate on these points.
Respected and learned President!
WHILE disagreeing with the President, the Technical Members were reverential to him.
One Member wrote: "I have had the pleasure and privilege of going through the elaborate order recorded by the Hon'ble President. I have also benefited from a reading of the said order as it has dealt with and explained lucidly several legal concepts involved in the issue for consideration before the Larger Bench. However, with due respects, I am unable to agree with the views expressed and the conclusions drawn in the said order."
Another Member said, “I have read with admiration the well crafted orders of my judicial guru Hon'ble Justice G Raghuram, President. ….. In conclusion, much as I admire the phenomenal erudition of the Hon'ble President, I am not in a position to persuade myself to agree with his view.”
Judicial Somersault?
ONE Technical Member observed, "After consistently holding that the GD Builders decision is not per incuriam and is a good law, that too, after making the present reference, can the Tribunal take a different view now and perform a judicial somersault?
The frequent change of views by the Tribunal only adds to the uncertainty and might impact the institutional integrity. I find that there are no changes in circumstances either by way of any retrospective change in law or a decision of a higher authority warranting a change in view. I should make it clear that it is not my intention to embarrass anyone, least of all my brother Members, all of whom I hold in high esteem. My only object is to place a note of caution that we should not be hasty in drawing conclusions/passing orders which has the effect of upsetting the settled positions in law, which are, in any case, under challenge and consideration before the highest court of the land. In my humble view, not only the legality but also the propriety of rendering a decision is equally important and should weigh.”
This Member also apologized for his lengthy order, " I am sorry that the complexity and multiplicity of issues involved has made this order somewhat lengthy but I could not have done justice to the issues placed for consideration without a proper discussion." His order ran into about 16000 words.
First Time in History of CESTAT?
THIS is perhaps the first time in the history of CESTAT that three Technical Members of the Tribunal not agreeing with the decision of the Judicial Members including the President and that too on a purely judicial matter. A Judicial Member once told me that he was amazed at the jurisprudential knowledge and judicial mind of some technical members and he has learnt quite a bit of law from them.
Moulvi Sapru vs Pandit Jinnah. Dr.Tej Bahadur Sapru argued a case in which he was pitted against Mohd. Ali Jinnah. There was an original document in Persian which had to be deciphered and the counsel of the parties were requested to read it out for the benefit of the court. Mr. Jinnah miserably failed and betrayed his profound ignorance of Persian, whereas Mr.Sapru fluently read out the entire document. This created a sensation and the next morning's newspapers commented in flaming headlines - 'Pandit Jinnah vs Moulvi Sapru'.
That, certainly was not the case here.
In Cadila Pharma - 2008-TIOL-1668-CESTAT-AHM-LB, the President did not agree with the order written by the Judicial Member and the Technical Member agreed with the President and so the President's view prevailed.
But there seems to have been no occasion when the President's opinion had been overruled by technical members - not that the President enjoys any special status in the Bench.
Disparaging Remarks against President
AT least one Technical Member is known to have passed certain insinuating and disparaging remarks against the President and a Member. See what a Technical Member wrote in this order in his chaste and uncompromising language:
A perusal of the appeals and applications purporting to be under Section 151 of C.P.C. addressed to the then President brother Fauja Singh Gill (Justice Gill was the First President of the CEGAT as the Tribunal was then known as - DDT) for expediting the hearing of the appeals reveal that they breathe of confident optimism in retrieving substantially if not fully the losses sustained through the fines.
After making repeated applications dated 5-3-1985, 8-5-1985, 30-7-1985, 2-8-1985 and 4-10-1985 to the President, the appellants finally succeeded in getting their appeals posted before the North Regional Bench of the Tribunal consisting of brothers Fauja Singh Gill and Devki Nandan Lal, even though this was just before brother Fauja Singh was to demit the office on completion of his tenure. It is also seen from the records of the cases that he agreed to take up these two appeals in preference to others for reasons best known to him. However, the S.D.R. objected to the jurisdiction of the North Regional Bench to hear the appeals, and after hearing the matters for two days on 4-11-1985 and 5-11-1985, the SDR's objection was upheld, and the appeals were transferred to the West Regional Bench, after finding fault with the Registry that it did not send these two appeals to the West Regional Bench, but unfortunately kept them in New Delhi and listed for hearing.
At best, this observation can be described as an illustration of amnesia on account of advancing age as each of the applications made from time to time was specifically put to the President and the request for early hearing was deliberately deferred.
With much regrets, therefore, it is not possible to be persuaded to accept the findings of brothers Fauja Singh Gill and Devaki Nandan Lal that the Hon'ble High Court of Delhi had condoned the delay in presentation of these appeals to the Tribunal.
Brother Fauja Singh Gill recorded the said findings perhaps while reminiscing of the days when he adorned the bench of the same Delhi High Court.
He was approaching the Biblical span of life of three score and ten years and such an aberration on his part is pardonable in those circumstances.
As regards the concurrence of brother Lal, it has to be taken as a true expression of the customary Indian tradition of showing respect to the elder brother.
However, the call of conscientious duty drags this Bench elsewhere from the path of giving blind respect of the elders.
The Judicial Member sitting with him was perhaps aghast and noted in his order, “I disassociate myself with the insinuations and disparaging remarks made against the former President of the Tribunal and the Hon'ble Member Shri D.N. Lal.”
The case was referred to a three Member Bench and the Larger Bench also while disposing of the matter noted, “ We would also like to place on record that we totally dissociate ourselves with the insinuations and disparaging remarks made by Member (Technical), WRB in his order against the former President of the Tribunal and (ex) Member Shri D.N. Lal .“
Please see 2002-TIOL-356-CESTAT-MUM-LB
Fortunately nothing of the sort happened again in the last thirty years.
Works Contract Service - From our pages
IN DDT 2286 04.02.2014, we suggested that the FM should issue a clarificatory notification that Works contract was not taxable prior to 1.6.2007. some more DDTs
The following articles may also be of interest.
1. The Daelim dilemma!
2. NO SERVICE TAX ON COMPOSITE CONTRACT
3. Service Tax on composite contract - Whether leviable?
4. Service Tax on Works Contract - A storm in the (S)T cup!
5. Post CBEC Circular on Service Tax - Are works contractors liable at all?
6. Service Tax : The fine dividing line between indivisible contract and composite contract
7. Growing ambit of Works Contract as a taxable service
Until Tomorrow with more DDT
Have a nice day.
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