By TIOL News Service

HYDERABAD, APRIL 22, 2017: THE petitioner is a hotel engaged both in the business of boarding and lodging. The petitioner also has a restaurant.

The present dispute is confined only to the value of the food supplied by the petitioner to the workers employed by them.

By the impugned o-in-o, the Revenue authorities came to the conclusion that the food supplied by the management of the petitioner to its own workers at a subsidized rate, tantamount to a service, taxable under Section 67 of the Act, in view of the fact that the food is supplied in an area outside the registered premises.

The petitioner is before the High Court in a Writ Petition.

The High Court observed that the question that arises for its consideration is as to whether the food supplied by an employer to the workers at a subsidized rate, would come within the meaning of the expression 'service', irrespective of whether the food is supplied within the premises or outside the premises.

After extracting the definition of the word "service" appearing in section 65B(44) of the FA, 1994, the High Court noted -

+ To come within the purview of the definition of the expression 'service', the following pre-requisites are to be found:

(i) there should be an activity,

(ii) such activity should be carried out by a person for another, and

(iii) it should be carried out for a consideration.

+ The stand taken by the respondents is that after the amended definition of the expression 'service', all types of services come within the purview of the tax net, except those that are exempted under the Notification 25/2012-ST, dated 20.06.2012.

+ But, what has been omitted to be taken note of, is the fact that unless an activity carried on by a person falls within the purview of the definition 'service', the question of analyzing whether such activity falls within the exemption under the Notification, dated 20.06.2012, does not arise. Therefore, primarily, one has to satisfy oneself as to whether the activity in question satisfies all the ingredients of service within the definition of the term under Section 65B(44).

+ Naturally, no management will be magnanimous enough to ask the workers to take the food sitting inside the air-conditioned dining hall. If the workers are provided food outside such a restaurant, which is meant exclusively for feeding them, the same cannot be treated as not forming part of the establishment. To say that the establishment feeds its own workers, but to conclude that the place where it is provided is not part of the establishment, tantamounts to creating a dichotomy, which does not exist.

+ As a matter of fact, any supply of subsidized food to the workers by the management of a Company, has to be seen as part of the pay package that the workers have negotiated with the employer. Under the Factories Act, 1948 and even under the Industrial Disputes Act, 1947, the expression 'wages' would include within its purview, anything that is supplied at a subsidized rate.

+ Section 2(rr) of the Industrial Disputes Act, 1947 defines 'wages' to mean, all remuneration capable of being expressed in terms of money, which would, if the terms of employment, express or implied, were fulfilled, be payable to a workman in respect of his employment.

+ Therefore, the food supplied by an employer to its employees at a subsidized rate forms part of the wages under Section 2(rr) of the Industrial Disputes Act, 1947.

+ Once the activity undertaken by the petitioner in the form of supply of food to its workers at a subsidized rate is understood to be part of their industrial obligation, it is unthinkable that the same can be construed as service falling within the definition of the expression 'service' under Section 65B(44) of the Finance Act.

+ As a matter of fact, the petitioner has paid the value added tax on the value of the food supplied to its workers. In respect of some assessment years, they have even been imposed with a penalty under the Andhra Pradesh Value Added Tax Act, 2005. Therefore, once the State Authorities have treated the supply of food to the workers of the petitioner as sale, it is not open to the respondents to treat the same as service and impose a liability.

Holding that the respondent Revenue had completely overlooked this aspect and assumed a jurisdiction not vested in him in law, the impugned order was set aside and the Writ Petition was allowed.

(See 2017-TIOL-779-HC-AP-ST)