Supreme Court bench comprising Chief Justice H.L. Dattu, Justice A.K. Mishra and Justice Amitava Roy has stayed the Bombay High Court’s order ,dated 15.12.2014 , of dismissing the petition challenging levy of service tax on lawyers.
Service Tax Stayed On Lawyers
The Bombay Bar Association has challenged aforesaid order as well as the provision of Sub-clause (zzzzm) of clause (105) to Section 65 of the Finance Act, 1994, which was inserted by the Finance Act, 2011.
Few of the prominent questions of law, amongst others, as framed before SC are as below :
Whether the relationship between an advocate and a litigant is that of a provider and a service recipient or whether the relationship is that of a representative and a litigant ?
Whether the impugned judgment is correct and legal in as much as levy of service tax on the provision of assistance to the court would hit the provision of justice either by the individual or a business entity as both are indisputably guaranteed under right to justice in terms of Article 21 read with Article 39A of the Constitution ?
Bombay High Court
It is pertinent to note that Bombay High Court while dismissing the petition held that
the taxable service means any service provided or to be provided to any person, by a business entity, in relation to advice, consultancy and assistance in any branch of law, in any manner.”
legislature by inserting such provision has neither interfered with the role and function of an advocate nor has it made any inroad and interference in the constitutional guarantee of justice to all. The services provided to aindividual client by an individual advocate continues to be exempted from the purview of the Finance Act and consequently Service Tax but when an individual advocate provides service or agrees to provide services to any business entity located in the taxable territory, then, he is included and liable to pay Service Tax.’ The judgment also notes, ‘The Advocates and legal practitioners are known to pay professionaltaxes and taxes on their income. They are also brought within thepurview of service tax because their activities in legal field are expandingin the age of globalization, liberalization and privatization. They are not only catering to individuals but business entities.’
Since, the levy of service tax itself is stayed , accordingly the service tax is not to be paid even under Reverse Charge Mechanism during the operation of stay order of Supreme Court of India.
by Anand Mishra, Founder Advocate, AMLEGALS
( The author is a leading advocate and handling cases in Tribunals & High Courts of India. He can be contacted on firstname.lastname@example.org .For more please refer www.amlegals.com .)