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Uttarakhand High Court · body

2005 DIGILAW 216 (UTT)

Shail Sikhar Associates v. Government of India

2005-06-24

CYRIAC JOSEPH, RAJESH TANDON

body2005
JUDGMENT 1. The petitioner firm is the licensee under the Municipal Board, Mussoorie For running the Ropeway situated near Jhulaghar, Mall Road, Mussoorie. Annexure 5 is a copy of the Deed of License. As per Clause (23) of the said Deed of License, the liability to pay all Government taxes i.e. Entertainment Tax, Vyapaar Kar etc., if any, shall be of the licensee firm. 2. The third respondent, Superintendent of Customs and Central Excise, issued Annexure 1 Letter dated 21-04-2005 directing the petitioner to take registration under Service Tax and submit the required information as per the enclosed summons. The said letter was issued In view of the amendment to the definition of "Tour Operator" contained in the Finance Act 1994 with effect from 10-09-2004. Annexures 2 and 3 are the copies of the summons issued to the petitioner. The petitioner filed Annexure 4A Objection to the direction in Annexure 1. After considering the said objection, the third respondent passed Annexure 4 Order dated 24-05-2005 overruling the objection and directing the petitioner to furnish the details asked in the summons and to get himself registered with the office of the third respondent. Aggrieved by Annexures 1, 2, 3 and 4, the petitioner has filed this writ petition praying to quash Annexures 1 to 4 and to direct the respondent not to recover service tax from the petitioner. 3. We have heard Mr. Rajendra Dobhal, learned counsel for the petitioner and Mr. Vikas Pandey, learned Central Government Counsel who accepted notice for respondents Nos. 1 and 3. 4. The first contention urged by the learned counsel for the petitioner is that the petitioner is not a "Tour Operator" as defined in the Finance Act and therefore, the petitioner is not liable to pay service tax. We do not find any merit in this contention. According to Clause 95 of Section 65 of the Finance Act 1994, "Service Tax" means tax leviable under the provisions of Chapter V of the Finance Act. According to Section 66, service tax is leviable in respect of the taxable services referred to in Sub-clause (n) of Clause 105 of Section 65. According to Sub-clause (n) of Clause 105 of Section 65, any service provided to any person by a Tour Operator in relation to a tour is taxable service. According to Section 66, service tax is leviable in respect of the taxable services referred to in Sub-clause (n) of Clause 105 of Section 65. According to Sub-clause (n) of Clause 105 of Section 65, any service provided to any person by a Tour Operator in relation to a tour is taxable service. Thus, any service provided to any person by a tour, operator is a taxable service and service tax can be levied on such service. But the petitioner's contention is that he is not a tour operator. The said contention is not correct. The expressions "Tour" and "Tour Operator" are defined in Clauses 113 and 115 of Section 65. According to Clause 113 of Section 65, "Tour" means "a journey from one place to another irrespective of the distance between such places". According to Clause 115 of Section 65 "Tour Operator" means "any person engaged in the business of planning, scheduling, organising or arranging tours (which may include arrangements for accommodation, sightseeing or other similar services) by any mode of transport and includes any person engaged in the business of operating tours in a tourist vehicle covered by a permit granted under the Motor Vehicles Act, 1988 (59 of 1988) or the rules made there under". A bare reading of the definitions of "Tour" and "Tour Operator" mentioned above clearly shows that the petitioner is a "Tour Operator". The petitioner is engaged in the business of arranging tours by a mode of transport, as the tourists are transported from one place to another place in a Trolley or a Cable Car. It has been made clear in Clause 115 of Section 65 that "tours" include arrangements for accommodation, sightseeing or other similar services. It cannot be disputed that in this case the passengers are carried in the Trolley or Cable Car for sightseeing and other similar services. The learned counsel for the petitioner contended that the Trolley travels from lone fixed point to another fixed point and hence the petitioner is not a Tour Operator. In view of the definition of "Tour" such a contention is baseless. The learned counsel for the petitioner contended that the Trolley travels from lone fixed point to another fixed point and hence the petitioner is not a Tour Operator. In view of the definition of "Tour" such a contention is baseless. Even if the tour is arranged from one fixed point to another fixed point, it will come under the definition of "Tour" which has been defined in Clause 113 of Section 65 as "a journey from one place to another irrespective of tile distance between such places." Therefore, we hold that the petitioner is a "Tour Operator" as defined under Clause 115 of Section 65 of the Finance Act 1994 I and hence, the petitioner is liable to pay service tax. 5. The only other contention raised by the learned counsel ,for the I petitioner is that Ropeway is an immovable property which is the subject of , Legislation under Item No. 13 of List II of the Seventh Schedule to the Constitution of India and therefore, service tax cannot be imposed in respect of Ropeways through a legislation of Parliament. This contention is totally , misconceived and absolutely baseless. The service tax is not in respect of the l. Ropeway. Service tax is levied in respect of the services mentioned in Sub- clause (n) of Clause 105 of Section 65 of Finance Act 1994. It is true that Ropeways are mentioned in Item No. 13 of List II of the Seventh Schedule to the Constitution of India. But since the service tax is not in respect of Ropeways, the contention of the learned counsel for the petitioner is devoid of merit. 6. No other contention has been raised by the learned counsel for the petitioner. 7. In the above circumstances, we do not find any merit in the writ petition and the writ petition is dismissed.