Where Service is not taxable and Service Tax has already been paid, then assessee is liable to refund at the earlierst

KALLADIKODE SERVICE CO-OPERATIVE BANK LTD. Vs. STATE OF KERALA

In the case of The Kalladikkode Service Co-Operative Bank Limited v/s Union Of India Represented By The Secretary To Government And Others, the Hon’ble Kerala High Court held that in the course of adjudication exercise, if the authority arrives at a finding that the petitioners are not liable to service tax, then the amount of service tax already paid by the petitioners shall be refunded at the earliest.

JUDGEMENT

V.Chitambaresh, J. – ( 1. ) THE five year term of the Managing Committee in office of the petitioner bank would expire on 06.03.2015 and steps were therefore initiated to conduct an election well ahead in time. The petitioner bank is a Society registered under the Kerala Cooperative Societies Act, 1969 (‘the Act’ for short) engaged in the business of banking apart from a fertiliser depot and a provision store. The Managing Committee passed a resolution on 29.12.2014 to conduct the election on 01.03.2015 as required under Rule 35A of the Kerala Co -operative Societies Rules, 1969 (‘the Rules’ for short). It is conceded that the fourth respondent Election Commission has neither appointed a Returning Officer nor issued a notification finalising the election calender. The petitioner bank now finds it difficult to have the election conducted adhering to the provisions of the amended Act and the Rules in the preparation of the voters list. The petitioner bank contends that there is paucity of time to identify the active voters giving effect to Sections 16A and 19A of the Act as well as Rule 18A of the Rules. The plea therefore is that Rule 18A of the Rules should not be applied to the petitioner bank and that the fourth respondent Election Commission must conduct the election as proposed. Respondents 1 to 3 who are the State of Kerala, the Joint Registrar and the Assistant Registrar of Cooperative Societies however maintain that the election could only be consistent with the amended Act and the Rules.
( 2. ) I heard Mr. V.M. Kurian, Advocate on behalf of the petitioner and Mr. D. Somasundaram, Special Government Pleader on behalf of the respondents. The amended provisions of the Act which are germane to the case on hand are as follows: “16A. Ensuring participation of members in the management of societies: (1) No member shall be eligible to continue to be a member of a co -operative society if he, – (a) is not using the services of the society for two consecutive years or using the services below the minimum level as may be prescribed in the rules or the bye -laws; (b) has not attended three consecutive general meetings of the society and such absence has not been condoned by the members in the general meeting. (2) Where any person becomes ineligible for continuing as a member as per sub -section (1), the committee of the society may remove the person from membership after giving him an opportunity for making his representation, if any, and the person concerned shall thereupon cease to be member of the society. Provided that no member of the society removed as above shall be eligible for re -admission as a member of that society for a period of one year from the date of such removal.” “19A. Member participation. No member of a society shall exercise the right of a member unless he has attended the minimum required general body meeting and minimum level of services as may be prescribed.” The amended provisions of the Rules which are germane to the case on hand are as follows: “18A. Ensuring participation of members – (1) No member shall be eligible to continue to be a member of a co -operative society if he is not using the services of the society for two consecutive years in the following manner: (a) In case of a credit society, a member who has made a deposit or has become a borrower or surety or availed or purchased products or any other services made available by such society as specified in the bye -laws; (b) In the case of any other society, a member who has involved in anyone of the objects specified in the bye -laws or has availed the products or suing the service made available by such co -operative society as specified in the bye -laws. (c) In the case of Central or Apex Societies/Banks/Federation, if the member society has not borrowed the amount from such Central or Apex Societies/Banks/Federation/and in the case of Apex societies/Banks/Federations where the main object is to lend the amount to the member societies or if the member society is not using the services made available by such society/federation as specified in the bye -laws. (2)(a) A register in Form No. 32, shall be maintained by every society. The Chief Executive of the society shall be responsible for the proper maintenance of the register. (b) The details with regard to each and every member of a society shall be made up -to -date and placed before the Committee within sixty days on completion of every year. (c) The Committee shall examine and certify the register as to the details so recorded by the Chief Executive, within thirty days from the date of placing it before the Committee. (d) The Chief Executive of the Society shall forward a certificate to the Registrar, as to the up -to -date maintenance of the register within three months of the close of the year. (e) The Chief Executive of the society shall submit this register before the Electoral Officer for verifying the eligibility of members who are qualified to vote at the election.
( 3. ) SECTION 16A of the Act specifies as to who shall be eligible to continue as member of a Co -operative Society and Section 19A of the Act clarifies as to who shall be forbidden from exercising the right as a member. No member shall be eligible to continue as such if he is not using the services of the Society for two consecutive years or using the services below the minimum level as may be prescribed in the rules or the bye -laws. Similarly no member shall be eligible to continue as such if he has not attended three consecutive general meetings of the society and such absence has not been condoned by the members in the general meeting. Also no one shall exercise the right of a member unless he has attended the minimum required general body meeting and minimum level of services as may be prescribed. Both Sections 16A and 19A of the Act were inserted by Act No. 8/2013 and have come into force with effect from 14.02.2013 and it is too late for any Co -operative Society to realise the rigour of the amended provisions. ;

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