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The Finance Act, 1996
Article 226 in The Constitution Of India 1949

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pandal
service tax
Delhi High Court
All India Tent Dealers Welfare ... vs Union Of India & Ors. on 30 service tax on taxes

September, 2011 finance act

hindu marriage
Author: Dipak Misra,Chief Justice
certiorari
section 65(a)
* IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment reserved on: 26th September,

2011

% Judgment pronounced on: 30th September, 2011

+ WRIT PETITION (CIVIL) No. 12345/2009

All India Tent Dealers Welfare Organization ..... Petitioner

Through: Mr.Joydip Bhattacharya with
Mr.Vishnu Langawat, Mr.Robin
George and Ms.Shruti Paikaikar,
Advs.

versus

Union of India and Ors. .....

Respondents
Through: Mr.A.S. Chandhiok, ASG with
Mr.Ritesh Kumar, Adv. R-1/UOI
Mr.Mukesh Anand, Adv. R-2 & 3

CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA

1. Whether reporters of the local papers be allowed to see the judgment?

Yes
2. To be referred to the Reporter or not?
Yes
3. Whether the judgment should be reported in the Digest?
Yes

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DIPAK MISRA, CJ

Invoking the jurisdiction of this Court under Article 226 of the

Constitution of India, the petitioner has prayed for the following

reliefs: -

WP (C) No.12345/2009
page 1 of 5
"(a) Issue a writ, order or direction in the nature of
certiorari that Section 135(A)(10) of the Finance
Act, 2007 be quashed as unconstitutional.

(b) Issue a writ, order or direction in the nature of

certiorari that erection of a Pandal/Shamiana for
marriage is in furtherance of religious ceremonies,
rites and rituals which are to be performed for the
religious function and should not be considered as
social function for the purpose of service tax.

(c) Issue a writ, order or direction in the nature of

certiorari that no Service Tax be levied on
erection
of Pandal/Shamiana for Hindu marriage as it is
providing the said activities/services to a
religious
function and by quashing the said amendments as
unconstitutional.

(d) Issue a writ, order or direction in the nature of

certiorari restraining the respondents from levying
and/or collecting any service tax on erection of
pandal or shamiana for a Hindu marriage.

(e) Pass such other and further order(s) as this

Hon'ble
Court may deem fit and proper in the
circumstances of the present case."

2. We have heard Mr.Joydip Bhattacharya, learned counsel for the

petitioner, and Mr.Mukesh Anand, learned counsel for the respondents.

3. Be it noted, the Full Bench of this Court in WP (C) No. 3398/2010,

while dealing with the validity of imposition of service tax under Section

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WP (C) No.12345/2009
page 2 of 5
65(105)(zzzz) and Section 66 of the Finance Act, 1995 and as amended by

the Finance Act, 2010, has held thus -

"74. Quite apart from the above, as we have overruled

the first Home Solution case, we are disposed to think
that the provisions would operate from 2007 and the
amendment brought by the Parliament is by way of ex
abundanti cautela.

75. In view of the aforesaid analysis, we proceed to

enumerate our conclusions in seriatim as follows:

(a) The provisions, namely, Section 65(105)(zzzz) and

Section 66 of the Finance Act, 1994 and as
amended by the Finance Act, 2010, are intra vires
the Constitution of India.

(b) The decision rendered in the first Home Solution

case does not lay down the correct law as we have
held that there is value addition when the premises
is let out for use in the course of or furtherance
of
business or commerce and it is, accordingly
overruled.
(c) The challenge to the amendment giving it
retrospective effect is unsustainable and,
accordingly, the same stands repelled and the
retrospective amendment is declared as
constitutionally valid."

4. The learned counsel for the petitioner, while not disputing the

conception of imposition of service tax, has raised a singular contention

that

no service tax can be levied on the erection of „pandal or shamiana‟, for

a

WP (C) No.12345/2009
page 3 of 5
Hindu marriage is fundamentally a sacrosanct and sacred religious
function

and can never be treated as a social function to invite the levy of

service tax.

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5. In this context, we may refer with profit to Section 65(77a) and

(77b),

which read as follows: -

"(77a) "pandal or shamiana" means a place

specially prepared or arranged for
organising an official, social or business
function;
Explanation: For the purposes of this clause, "social
function" includes marriage.
(77b) "pandal or shamiana contractor" means a
person engaged in providing any service,
either directly or indirectly, in connection
with the preparation, arrangement, erection
or decoration of a pandal or shamiana and
includes the supply of furniture, fixtures,
lights and lighting fittings, floor coverings
and other articles for use therein."

6. It is worth noting that the Legislature, by the Finance Act, 2007,

has

inserted an explanation to Section 65(77a).

7. If the entire provision is properly understood, it is clearly

discernible

that Hindu marriage is not treated or regarded a social function per se.
If the

dictionary clause is appositely appreciated, there can be no trace of

doubt

WP (C) No.12345/2009 page

4 of 5
that only when a „pandal or shamiana‟ is used for marriage, it earns the

status of "social function" because the service component is involved. It

is

worth noting, the statute itself postulates that marriage is to be

regarded as a

social function and full effect has to be given to the same. That apart,
the

pre-requisite is the use of „pandal or shamiana‟ and, therefore, the

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contention

raised by the learned counsel that Hindu marriage is not a contract but a

sacred institution and hence, no service tax is imposable treating it as a

social function has to be repelled and we so do.

7. In view of the aforesaid analysis, we do not perceive any merit in

this

writ petition and, accordingly, the same stands dismissed without any
order

as to costs.

CHIEF JUSTICE

SANJIV KHANNA, J.

SEPTEMBER 30, 2011 kapil WP (C) No.12345/2009 page 5 of 5

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