Page 148 - GSTL_11th June 2020_Vol 37_Part 2

234 GST LAW TIMES [ Vol. 37
Merely because assessee a proprietorship concern, it cannot be said that they
are not individual person - For all legal purposes, a proprietorship concern is
considered as individual person - Adjudicating authority directed to decide
taxability issue after considering this aspect - Sections 65(68) and 65(105)(k) of
Finance Act, 1994. [para 4]
Matter remanded
REPRESENTED BY : None, for the Appellant.
Shri T.K. Sikdar, Asst. Commissioner (AR), for the
Respondent.
[Order per : Ramesh Nair, Member (J)]. - The issue involved in the pre-
sent case is taxability of Manpower Recruitment or Supply Agency Services.
2. None appeared on behalf of the appellant.
3. Shri T.K. Sikdar, Ld. Counsel appearing on behalf of the Revenue re-
iterates the findings of the impugned order.
4. On careful consideration of the submission made by the Ld. AR and
perusal of records, we find that all the appellants are individuals. They have
made a defence right from the Adjudicating Authority that with effect from 16-6-
2005, Manpower Recruitments and Supply Agency Services means any “Com-
mercial concern engaged in providing any services directly or indirectly in any
manner for recruitment or supply of manpower, temporarily or otherwise to a
client”. It has been the submission by the appellants, that they are the individual
person and not commercial concern. Therefore, as per the definition prevailing at
the relevant time, they are not covered under the ‘Manpower Recruitment or
Supply Agency Services’. The appellants also raised defence of claim of SSI ex-
emption, the same was denied on the ground that no evidence of aggregate value
of turnover of first 4,00,000/- from the levy of Service Tax was submitted. We
find that the Adjudicating Authority as well as the Commissioner (Appeals) held
that since the appellant were operating as a proprietorship concern, it will fall
under the term ‘Commercial Concern’. Hence, they were liable to pay the Service
tax. We find that merely because the appellant’s concern is a proprietorship con-
cern, it cannot be said that they are not individual person. For all the legal pur-
poses, a proprietorship concern is considered as individual persons, be it an In-
come Tax law or any other law. Therefore, this aspect needs to be reconsidered
and also the claim of SSI exemption made by the appellants. We, therefore, set
aside the impugned order and remand the matter to the Adjudicating Authority
to decide the matter afresh after affording an opportunity of personal hearing to
the appellants. Since the matter is of very old period of year 2005-2008, the Adju-
dicating Authority shall pass an order within a period of three months from the
date of this order. All the issues are kept open. Appeals are allowed by way of
remand to the Adjudicating Authority.
(Pronounced in the open Court on 15-10-2019)

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GST LAW TIMES  11th June 2020  148