Allahabad High Court
M/S Orient Craft Limited vs Union Of India And Others on 9 November, 2010
Bench: Yatindra Singh, Rajes Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 37 1. Case :- WRIT TAX No. - 1176 of 2010 Petitioner :- M/S Orient Craft Limited Respondent :- Union Of India And Others Petitioner Counsel :- Manish Dev Singh Respondent Counsel :- A.S.G.I.,C.P.Gupta,,S.P. Kesarwani 2. Writ Tax No. 1417 of 2010. 3. Writ Tax No. 1387 of 2010. Hon'ble Yatindra Singh,J.
Hon'ble Rajes Kumar,J.
1. The counsel for the petitioner submits that;
The renting of immovable property per se was not included in Section 65 (105) (zzzz) of the Finance Act, 1994;
This was also held by the Delhi High Court in bunch of writ petitions. The leading Writ Petition (Civil) No. 1659 of 2008, Home Solution Retail India Ltd. Vs. Union of India & others, decided on 18.4.2009;
The Union of India has filed an appeal against the same before the Supreme Court. However, no stay order has been granted;
The renting of immovable property was included by the Finance Act, 2010 with effect from 1st day of June, 2007;
As no service tax was levyable on renting of the property, it imposition with retrospective effect is discriminatory, arbitrary and unreasonable;
In renting the immovable property, there is no value addition, therefore, it does not fall within the ambit of service tax.
2. A counter affidavit has been filed on behalf of the Excise Department. However, no counter affidavit has been filed by the Union of India.
3. The counsel for the Union of India prays for and is granted three weeks time to file counter affidavit. Rejoinder affidavit may be filed within two weeks thereafter. List the case for admission thereafter. In the meantime, the parties may exchange their affidavits.
4. Till further orders of the Court, the retrospective operation of the levy of service tax on renting of property shall only remain stayed. However, it will be open to the respondents to assess and levy the service tax with prospective effect.
Order Date :- 9.11.2010 OP