Page 128 - GSTL_13th August 2020_Vol 39_Part 2

214 GST LAW TIMES [ Vol. 39
(c) Decision of Hon’ble Delhi HC in the case of Commissioner of Income
Tax v. Talangang Co-op Group Society Ltd.
(d) Decision of Hon’ble Bombay HC in case of Sind Co-operative Housing
Society v. Income Tax Officer.
(e) Decision of Hon’ble Calcutta HC in the case of Commissioner of In-
come Tax v. Apsara Co-operative Housing Society Ltd.
(f) Decision of Hon’ble Apex Court in the Commissioner of Income Tax,
Bihar v. Bankipur Club Ltd.
5.14.1 It is seen that all the case laws mentioned at (a) to (f) above per-
tain to Income Tax Matters and will not be applicable in the subject case.
5.15 Applicant has also relied upon the judgments of the concerned
Hon’ble High Courts in the case of Saturday Club Ltd. v. Assistant Commissioner,
Service Tax Cell, Calcutta & Ors., [2006 (3) S.T.R. 305 (Cal.) = 2005 (180) E.L.T. 437
(Cal.)] as well as in the case of Sports Club of Gujarat Ltd. v. Union of India (2010)
35 VST 375 (Guj HC) = 2010 (20) S.T.R. 17 (Guj.) to emphasize that iheir activities
are not liable to GST in view of the principles of mutuality.
5.15.1 In this regard, we find that both the above two cases pertain to
the period prior to 2012 and deeming provision was introduced with effect from
1-7-2012, to the effect that club and the members are deemed to be separate per-
sons.
5.15.2 We find that the judgments of the concerned High Courts is the
case of Saturday Club Ltd. v. Assistant Commissioner, Service Tax Cell, Calcutta &
Ors., as well as in the case of Sports Club of Gujarat Ltd. v. Union of India, has been
distinguished by the Hon’ble Authority for Advance Ruling, New Delhi, Central
Excise, Customs and Services Tax in respect of application filed by M/s. Emerald
Leisures Ltd. (Ruling No. AARST/10/2015 in Application No. AAR/44/ST/
07/2014, dated 11-9-2015) [2016 (41) S.T.R. 321 (A.A.R.)] wherein in para 15 of the
said order, it was held as follows :-
“The Hon’ble High Court observed that principally there should be exist-
ence of two sides/entities for having transaction as against consideration -
In a members club, there is no question of two sides - members and club,
both are same entity. We observe that with effect from 1-7-2012, new sys-
tem of taxation of services has been introduced by the Government. Besides
other changes, the word ‘service’ has also been defined under Section
65B(44) of the Finance Act, 1994. Explanation 3(a) to the said section stated
that for the purposes of this Chapter, an unincorporated association or a
body of persons, as the case may be, and a member thereof shall be treated
as distinct persons. Therefore, deeming provision has been introduced with
effect from 1-7-2012 to the effect that club and the members are deemed to
be separate persons. In view of these recent changes, the judgements of the
Hon’ble High Courts relied upon by the applicant, are no more applicable
to facts of the case before us. Therefore, the contention of the applicant that
club and its members are not two distinct persons, is incorrect”
5.15.3 Hence the judgments of the High Courts in the Saturday Club Ltd.
case and the Sports Club of Gujarat Ltd. case are not applicable to the facts of the
present case.
5.16 Finally, we find that the applicant is also relying on the decisions
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