Advocate Anandaday Misshra

Bombay Bar Association vs. UOI (Supreme Court), Petition(s) for Special Leave to Appeal (C)….CC No(s).13944/2015, Date-10-08-2015

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 in the case of P.C. Joshi Vs. Union of India of dismissing the petition challenging levy of service tax 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 an individual 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 professional taxes   and   taxes   on   their   income.     They   are   also   brought   within   the purview of service tax because their activities in legal field are expanding in the age of globalization, liberalization and privatization. They are not only catering to individuals but business entities.”

(Advocate Anand Mishra, AMLEGALS– The author is a leading indirect tax advocate handling cases in CESTAT & High Courts of India. He can be contacted on anand@amlegals.com and for more please refer www.amlegals.com)

Read Other Articles from Advocate Anand Mishra /Amlegals

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The full order of the Supreme Court as delivered on 10-08-2015 is as under

ITEM NO.37 COURT NO.1 SECTION III
SUPREME COURT OF INDIA
RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (C)….CC No(s).13944/2015
(Arising out of impugned final judgment and order dated 15/12/2014 in WPL No. 1764/2011 passed by the High Court of Bombay)

BOMBAY BAR ASSOCIATION Petitioner(s)

VERSUS

UNION OF INDIA & ORS. Respondent(s)
(With appln. (s) for c/delay in filing and refiling SLP and office report)

Date : 10/08/2015 This petition was called on for hearing today.

CORAM : HON’BLE THE CHIEF JUSTICE
HON’BLE MR. JUSTICE ARUN MISHRA
HON’BLE MR. JUSTICE AMITAVA ROY

For Petitioner(s)
Mr. K.K. Venugopal,
Sr. Adv. Dr. A.M. Singhvi,
Sr. Adv. Mr. K.V. Vishwanathan, Sr. Adv.
Mr. Mahesh Agarwal, Adv.
Ms. Parul Shukla, Adv.
Mr. Rishabh Parekh, Adv.
Mr. Rohit Bhat, Adv.
For Mr. E. C. Agrawala, Adv.

For Intervener(s)
Mr. Ashok Desai, Sr. Adv.
Mr. V. Shekhar, Sr. Adv.
Mr. Dushyant Dave, Sr. Adv.
Ms. Aishwarya Bhati, Adv.
Ms. Anu Bindra, Adv.
Mr. S.S. Ray, Adv.
Ms. Rakhi Ray, Adv.

For Respondent(s)

UPON hearing the counsel the Court made the following

ORDER

Delay condoned.

Notice.

Tag with S.L.P.(C) No.10855 of 2015.

Until further orders, there shall be interim stay of the operation and implementation of the impugned final order and judgment passed by the High Court of Judicature at Bombay in W.P.(L) No.1764 of 2011, dated 15.12.2014

(Neetu Khajuria)                      (Vinod Kulvi)
Sr.P.A.                                    Assistant Registrar

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Company: AMLEGALS
Location: AHMEDABAD, Gujarat, IN
Member Since: 14 Apr 2018 | Total Posts: 46
I am a litigation & arbitration advocate. I am founder of a leading full service law firm AMLEGALS. I handle litigation in indirect taxes, Insolvency & Bankruptcy Code, IPR, Arbitration, Contracts etc in High Courts, Tribunals-NCLT,CESTAT,NCLAT etc, Arbitral Tribunals and various Court of View Full Profile

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One response to “Supreme Court Stays Imposition of Service Tax on Lawyers”

  1. Rakesh Chaudhary says:

    providing justice is a subject matter of constitutional duty of state and rights of the aggrieved person ,cheaper, faster and easily available justice is the duty of the state so as to generate confidence and faith in the system of all. Here by putting service tax government has burdened the litigants as well as the lawyers to increase the cost of litigation . In india where lawyer’s are not that well paid except the 5 percent of the lawyer’s who monpolises the justice in all district and high court and have access to 95 percent of the work in their respective court leaving 95 percent of the advocates with only 5 percent of the work i personally think that this service tax would be a little to pain staking upon the litigants as well as upon the advocates who struggle to meet their provisions for the end of the day justice must be cheap and available to all i will quote a famous comments of an Hon’ble supreme court judge who commented in judgement “JUSTICE MUST BE DONE LET THE HEAVEN FALL” justice should not be hampered or discouraged by putting taxes and levies.

  2. A Lawyer says:

    I am A Lawyer, there’s a lot of hypocrisy about lawyers, the difference between words and actions by lawyers themselves. It is considered to be a noble profession, but mobility is not to be seen any where,

  3. A.P. Agrawal says:

    How is it stay of service tax? It simply stays the order dismissing writ against validity of service tax, which otherwise would have no effect against imposition or collection of service tax.

    AP Agrawal

  4. MANI RANJAN SUMAN says:

    With due respect to Supreme Court of India. In my opinion and to the best of my knowledge if law of equity applies with respect to rights then it must be applied with respect to responsibility also. It does not matter that who are providing the service, if it falls in the category of taxable service liable to service tax, then it must be charged by the lawyers also. Exempting only specific class from levy of service tax would indirectly mean injustice with other professionals.

  5. CA Gaurav Singh says:

    Dear Mr. Ajith Kumar, Can u pls define social service, there should be even thinking for other persons also and every professionals are also doing somewhere in the interest of nation.U have chosen this professional to earn money not to do social activity. Advocates charges huge fee from clients , small or medium class people even can’t afford good lawyers due to high fees…is it social service ?? Advocates who earn less than 10 Lacs p.a. are already exempt to charge service tax from clients,
    In my view their should be a certain amount per client from whom Service tax should not be charge because due to levy of Service Tax it ultimately goes out from common man pocket and they suffers , but definitely high class persons/entrepreneur can pay Service tax.

  6. Devendra Nayak says:

    Every citizen in gainful employment is serving the nation in one way or other. When other professionals are paying service tax why not lawyers. In any case only if fee is collected there is levy of service tax. Even services to individual clients should be subject to levy above a certain amount say Rs. 25000 in a year per client. If an individual is capable of paying huge fees why not service tax ?

  7. Ketan says:

    Why lawyers are charging huge amount for appearance in any court of law if they are doing social service to the society and nation as a whole.. I can still understand that they serves the nation ,in fact who log hi desh chalate hai considering that majority of the Cabinet Members of Parliament are Lawyers only.

    Are u also want to say that Cost Accountants and Chartered Accountants or Company Secretaries are not giving any service to the society? In fact, all these professionals are serving the nations. They are the source of revenue in the form of taxation either directly or indirectly are also the torch bearer of the nation professionally and ethically. Their code of conducts are above all.

    Pl. remove service tax on such services.

  8. Ashok says:

    What is point in taxability any way the lawyers won’t pay. It is on head on customers(public).

    It think if ST will impose on advocate fees, the cost to public will increase

  9. Rowans says:

    The argument that lawyers are doing ‘national duty’ / ‘social works’ can in the best case be called amusing. The definition of Service says ‘activity’ and ‘consideration’. If there is an activity and consideration is charged, then service tax is leviable (unless a negative list exclusion applies).

    In this light, it is surely a surprise that SC has granted a stay. Let us see.

    Meanwhile, it is advisable to follow the reverse charge payments notwithstanding the stay, lest we get into draconian 30% interest rates. If it ultimately turns out that the SC by some twisted logic says that service tax cannot be levied on lawyers, we will have to be satisfied that we have paid some extra money towards India’s progress.

  10. vvchalam says:

    When other Professionals such as Chartered Accountants, Cost Accountants and Company secretary are in the service tax net why not Lawyers
    Are they special? Are they above Law?

    Strange thing is SC has stayed the imposition of Service tax
    but of course judges were also lawyers one time thats why they have stayed the proceedings
    It is very bad on the part of lawyers who say they are working for nation don’t want to shell out a single penny towards this taxes

  11. VSharma says:

    What about lawyers charging ₹5lakhs to ₹30lakhs per appearance in the SC? What dort of “service” would that be? How about setvice tax applicable if lawyers’ fees exceed ₹1lakh per case?

  12. ADVOCATE AJITH KUMAR says:

    Lawyers are doing social works to others. It can’t be considered as business. It is a service to the nation and to the society. If lok adalat is doing free services then it can be assumed that the legal advice given by a lawyer to his clients can not be considered as business by it can be considered as legal aid or service to the nation and to the needy society and its people.

  13. mkshah says:

    confusing.

  14. ganesh says:

    Whether reverse tax need to be paid henceforth till stay is vacated?

  15. Manish says:

    I am pretty much sure Article 21 would not hamper the power to levy taxes. Unfruitful

  16. vaidya kesavaiyer says:

    Lawyers are next to our politicians

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