Customs, Excise and Services Tax Appellate Tribunal (CESTAT): A Division Bench of Anil Choudhary (Judicial Member) and P. Anjani Kumar (Technical Member), allowed an appeal which involved the question that whether the appellant company was liable to pay service tax under the category of Business Auxiliary Service (BAS) for the period April 2007 to September 2011 or whether the activity of the appellant was not taxable under the principle of mutuality, being services provided to group/promoter companies.

The appellant company was a limited company by guarantee and not by having a share capital. The main objects of the appellant company, as per its Memorandum of Association, are to enable the members of the company to mutually avail and share common facilities and resources afforded by the company. The counsel for the appellant Ashok S. Hasija, contended that a Company limited by guarantee is an extensive mode used for organizing professionals traders, etc into an association for a general and non-business purpose; the appellant company had been incorporated to organize and share various common facilities and resources on the principle of mutuality; the transactions of the appellant were on the basis of no profit no loss basis; the appellant was an extended arm of the member companies. It was accepted principle that Service provided to one’s own self was not taxable; appellant company and the member companies being one unit, the nature of service so provided by the appellant to its members would that be a service to themselves; therefore, service tax could not be levied.

The Bench while allowing the appeal found that the companies have come together to share the resources and there was mutuality of interest of the promoters/member companies and that the show cause notice was not maintainable both on the principle of mutuality and on the fact of lack of consideration for such services alleged to have been rendered. [GMR Corporate Centre (P) Ltd. v. C.C.E. & C.S.T., 2020 SCC OnLine CESTAT 147 , decided on 29-07-2020]

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