ALL INDIA HAJ UMRAH TOUR ORGANIZER ASSOCIATION MUMBAI versus UNION OF INDIA & ORS

Citation: [2022] 17 S.C.R. 92 · Decided: 26-07-2022 · Supreme Court of India · Bench: A.M. KHANWILKAR · Disposal: Dismissed

cites 17 · see the full citation network in Lexace

Judgment (excerpt)

A
B
C
D
E
F
G
H
92
SUPREME COURT REPORTS
[2022] 17 S.C.R.
   [2022] 17 S.C.R. 92
92
ALL INDIA HAJ UMRAH TOUR ORGANIZER ASSOCIATION
MUMBAI
v.
UNION OF INDIA & ORS.
(Writ Petition (C) No. 755 of 2020)
JULY 26, 2022
[A.M. KHANWILKAR, ABHAY S. OKA AND
C.T. RAVIKUMAR, JJ.]
Haj matters:
Integrated Goods and Services Tax Act, 2017 — ss. 2(14),5(1),
12, 13 —Place of Provisions of Services Rules, 2012 – rr. 2, 3, 4, 7,
and 8 –Petitioners-Hajj group organizers (HGO) and Private Tour
operators (PTO) rendering service to Haj pilgrims for the Haj
pilgrimage for performing the religious activity of Haj/Umrah –
Liability to pay service tax –Plea of the petitioners that if the location
of the service recipient is outside the taxable territory, service tax
cannot be levied; and that the levy is discriminatory as it exempts
certain hajis who undertake the pilgrimage through the Haj
Committee – Held: Service rendered by the HGOs or PTOs to Haj
Pilgrims is taxable for service tax as the service to Haj pilgrims is
provided or agreed to be provided in a taxable territory – As regards
exemption to Haj Committee, the Haj Committee is a statutory
committee which is entrusted with various functions for the welfare
of Haj pilgrims–Profit motive is completely absent in the case of the
Haj Committee–Thus, the Haj Committee constitutes separate class
in itself as distinguished from HGOs when it comes to rendering
service to Haj pilgrims – There is an intelligible differentia for this
classification–No part of the package offered by HGOs involves a
service by way of conduct of any religious ceremony – Thus, the
sub-clause (b) of clause 5 of the Mega Exemption Notification cannot
be invoked by the HGOs – Exemption under sub-clause (b) of clause
5 is to the service provider–HGOs have no role to play in actual
conduct of religious ceremonies which are a part of Haj pilgrimage
– Service rendered by HGOs to Haj pilgrims is to facilitate them to
reach at the destination to perform rituals/religious ceremonies –
No religious ceremony is performed or conducted by the HGOs–
Religious ceremony is conducted by Haj pilgrims or by someone
A
B
C
D
E
F
G
H
93
else in the Kingdom of Saudi Arabia –Thus, exemption under clause
5A is not applicable to HGOs –Mega Exemption Notification no.25
of 2012–ST.
Dismissing the writ petitions, the Court
HELD: 1.1: The provisions of the Place of Provisions of
Services Rules, 2012 and the relevant provisions of Integrated
Goods and Services Tax Act, 2017 are to a great extent pari
materia. As far as the location of service provider in this case
(HGOs) is concerned, there is no dispute that all of them have to
be registered under Rule 4 of the Service Tax Rules, 1994 and
therefore, as per sub-clause (a) of clause (h) of Rule 2, the location
of HGO will be the premises for which registration has been
granted to HGO. Such premises are necessarily in India. Even
assuming that any other sub-clauses of clause (h) are applicable,
the location of the service provider, in this case, will be in India.
As far as the location of service receiver under clause(i) of Rule
2 is concerned, in this case, the service receiver is the Haj pilgrim
who is obviously not registered. Therefore, sub- clause (a) of
clause (i) will have no application. There are four categories listed
in sub-clause (b) of clause (i) of Rule 2. The first category is of
business establishments. The second category is of services which
are used at a place other than the business establishment. The
third category is where services are used at more than one
establishment. On the face of it, the cases of Haj pilgrims
undertaking the Haj pilgrimage through HGOs will not be covered
by these three categories. What is applicable to them is the fourth
category which is the usual place of residence of the recipient of
service. It is not the place where the service recipient receives
service or is rendered service. It is the place of ordinary
residence of the service recipient which, in this case, will be in
taxable territory. As provided in Rule 3, the place of provision of
service is the location of the recipient of service. In this case,
the recipients of service from HGOs are Indian residents and
accordingly, their place of residence in India will be the place of
provision of service. Rule 8 provides that where the location of
the provider of service as well as that of the recipient of service
is in the taxable territory, the place of provision of service is the
location of the reci

Excerpt shown. Read the full judgment & AI analysis in Lexace.