N.N.MATHUR, J. - (1.) BY this judgment three writ petitions filed under Art. 226 of the Constitution of India challenging the constitutional validity of the provisions of Finance Act by which service offered by the chartered accountants, real estate agents (property dealers) and the architects have been brought under the tax net, which is to be charged at 5 per cent of the value of the taxable services provided by them. Since the question involved in all the three writ petitions is identical, all the petitions are being disposed of by this common judgment.
(2.) THE first writ petition being D.B. Civil Writ Petn. No. 4018/1998 has been filed by the Jodhpur Chartered Accountants Society. The society is aggrieved of levy of service-tax on the persons belonging to the profession of chartered accountants. The second writ petition being D.B. Civil Writ Petn. No. 4263/1998 has been filed by an association of property dealers in Jodhpur known as Jodhpur Property Dealers Association. It is claimed that the members of the petitioner-association are doing property business without rendering any service to the customers. They simply introduce purchasers, sellers, if any body approaches to them. The third writ petition has been filed by Annu Mridul, an architect practising at Jodhpur. According to the petitioner the service or work undertaken by the practising architect cannot be categorised as service much less a taxable service which may attract service-tax. The common ground of challenge in all the three writ petitions is the constitutional validity of the provisions of the Finance Act by which the services offered by the professionals like chartered accountants, architects and property dealers have been brought under the tax net on the ground of lack of legislative competence of the Parliament and discrimination inasmuch as the legislature has picked and chosen some professions and left out the others. The case set out by the respondents is that the services rendered by the professionals to which each of the petitioners belonged an imposition of tax as service-tax on services rendered by them does not fall under Entry 60 of List II of Schedule VII of the Constitution of India whereas such a tax can only be imposed by the Parliament under residuary entry viz., Entry No. 97 of the Union List of Schedule VII and Art. 248 of the Constitution of India. The Parliament has exclusive power to make any law with respect to any matter not enumerated in concurrent list or the State List. According to the respondents the service-tax is levied on services rendered by the chartered accountants, architects and property dealers and not a tax on profession. As regards the ground of discrimination, it is submitted that it is prerogative of the Parliament to decide whom to tax or whom not to tax so long as the tax is not discriminatory. Mr. Rajendra Mehta with his usual fairness has brought to our notice that the impugned challenge in the instant writ petitions have been decided against the petitioners by the High Court of Gujarat, Bombay, Madras and Kerala. The judgment of the Gujarat High Court in Chartered Accountants Association vs. Union of India (2001) 168 CTR (Guj) 4 deals with the case of chartered accountants so as the Bombay High Court in All India Federation of Tax Practitioners & Ors. vs. Union of India & Ors. (2001) 168 CTR (Bom) 24. The case of the Madras High Court pertains to the architects reported in Indian Institute of Architects vs. Union of India (2002) 175 CTR (Ker) 449 : 139 ELT 245. The Kerala High Court in All Kerala Chartered Accountants' Association vs. Union of India (2002) 121 Taxman 486 (Ker). We have perused the judgments of all the four High Courts. We are in respectful agreement with the views expressed therein upholding the constitutional validity of the service-tax so far as the persons belonging to the professions of chartered accountants, architects and property dealers are concerned. However, we propose to give reasons in brief for the view we have taken. (A) Emergence of concept of service-tax
(3.) IT was felt that while on the manufacture of goods tax is levied in the name of excise duty and on sale of goods tax is levied in the name of sales-tax, still there are number of activities falling in the category of "service sector" which constitutes 40 per cent of national GDP not subjected to tax. This has kept number of activities, which in fact are an important part of the national economy, outside the tax net. It is of course true that the persons rendering such services are subjected to income-tax covered by Entry 83 in List I, but that itself is not sufficient as the persons manufacturing goods pay excise duty on manufacture of goods and pay sales-tax on sale of goods and also liable to pay income-tax on the income earned by them. The professionals rendering services for remuneration and similar other persons rendering service in a large number of fields for remuneration can only subjected to professional tax by the State legislature by virtue of Entry 60 in List II but subject to the maximum limit of Rs. 2,500 per annum in view of the provisions of Art. 276(2) of the Constitution of India. Such tax is on profession/trade/calling/employment irrespective of the fact whether they were earning any income or not. In these circumstances, the Parliament decided to tax the services being rendered by the professionals and by other trades and callings. Thus, the service-tax is absolutely distinct and separate from the tax on profession/trade/calling/ employment. Thus, in February, 1994, the Finance Minister in his speech introduced the concept of service-tax. He emphasized for the need of taxing on "service sector" distinct from the profession, trade, calling, employment, etc. (B) Legislative history;