RAJESH JETHMAL SHAH Vs. UNION OF INDIA

JUDGEMENT

(1.) By way of these writ petitions filed under Article 226 of the Constitution of India, the petitioners beg to challenge the legality, validity and vires of notification No. 24/2007 : , dtd. 22/5/2007 and circular No. 98/1/2008-ST : , dtd. 4/1/2008 issued by the Secretary, Ministry of Finance, Department of Revenue, Government of India, New Delhi. It is submitted that by virtue of the said notification and circular, a completely erroneous interpretation is placed on Sec. 65(90a) and Sec. 65(105)(zzz) of the Finance Act, 1994 as amended by Finance Act, 2007. It is submitted that because of the incorrect interpretation, service tax is sought to be levied on the "renting of immovable property" as oppose to service tax on a service provided "in relation to renting of immovable property". The petitioner also seeks an appropriate writ, order or direction from this Hon'ble Court not restrain the respondents from charging service tax on the renting of immovable property and also seeks further appropriate writ, order or direction to direct the respondents to refund the service tax paid by the petitioners on the renting of immovable property. Certain facts are not in dispute but Mr. Arpit Kapadia, learned counsel appearing for the petitioners in all these petitions fairly state that issue involved in these writ petitions is no more res integra in view of decision of this Court in the case of Cinemax India Ltd. v. Union of India [2011] 12 taxmann.com 492/32 STT 359 where in the context of challenge to notification No. 24/2007. S.T. : , dtd. 22/5/2007 and with regard to question of law involved therein about validity of sub-clause (zzzz) of clause (105) of Sec. 65 of Finance Act, 1994 as amended by Sec. 75(5)(h) and Sec. 76 of the Finance Act, 2010 came to be rejected and even SLP preferred before the Apex Court was also rejected, these petitions are heard together and disposed of by this common judgment.

(2.) That in earlier writ petition in the case of Cinemax India Ltd. (supra) basic facts were recorded as under:--

(3.) After relying on various case laws and provisions of Finance Act, this Court in paragraphs 44 and 45 held as under:--