Indarajit Mahanty, J.:— This writ application has been filed by the petitioner-company, M/s. Utkal Builders Limited, with the following prayer:

(A) declaring the impugned provision, viz., section 65(90a) read with section 65(105)(zzzz) of the Finance Act, 1994 as amended by the Finance Act, 2007, 2008 and 2010as hull and void and ultra vires the Constitution of India and/or section 65 of the Finance Act and/or be pleased to strike down the said provision as illegal, arbitrary and violative of articles 14, 246 and 265 of the Constitution of India.

(B) issuing a writ/order/direction in the nature of certiorari or any other writ by setting aside section 75(5)(h) and section 76 of the Finance Act, 2010.

(C) declaring Notification No. 24/2007 dated May 22, 2007 (annexure 4), Circular No. 98/1/2008-ST dated January 4, 2008 (annexure 5) as revived by the Finance Act, 2010 and the Circular D.F.O No. 334/1/2010-TRU dated February 26, 2010 (annexure 6) as illegal null and void and ultra vires to the provision of the Finance Act, 1994 as amended by the Finance Act, 2007, 2008 and 2010.

(D) issuing a writ or mandamus or any other appropriate writ(s)/order(s)/direction(s) restraining to the officers/authorities of O.P Nos. 1 to 4 from directly or indirectly giving effect to or acting upon the impugned notifications/circulars or collecting any tax on the basis of section 65(90a), section 65(105)(zzzz) read with section 66 as amended by the Finance Act, 2010 giving retrospective operation on and from June 1, 2007.

(E) quashing the demand notice dated November 25, 2010 (annexure 2) and summon/notice dated December 21, 2010 (annexure 1) issued by opposite party Nos. 3 and 4).

2. Mr. M. Kanungo, learned counsel appearing for the petitioner, placed reliance upon the judgment rendered by the honourable High Court of Delhi dated April 18, 2009 passed in W.P (C) No. 1659 of 2008 in the case of Home Solution Retail India Ltd.… v. Uoi & Ors.…, [2009] 22 VST 508 (Delhi) wherein the honourable High Court of Delhi, declared that the provisions of section 65(105)(zzzz) of the Finance Act, 1994 do not in terms entail that the renting out of immovable property for use in the course or furtherance of business or commerce would by itself constitute a taxable service and be exigible to service tax under the said Act. As a consequence of the aforesaid finding and the interpretation placed thereon, the impugned notification dated May 22, 2007 and circular dated January 4, 2008 were held to be incorrect and consequently, ultra vires the said Act and set aside. The learned counsel for the petitioner placed great stress on various arguments raised before the honourable High Court of Delhi and in particular, in paragraphs 1, 2,.5, 6 as well as the conclusions arrived at therein in paragraphs 33, 34, 35 and 36 and submitted that the present challenge to the amendment made to section 65(105)(zzzz) as amended by the Finance Act, 2010 does not remedy the constitutional infirmity found by the honourable Delhi High Court in the aforesaid judgment.

3. The essential contention of Mr. Kanungo on behalf of the petitioner was that a distinction has to be made between “property based service” and “performance based” service as well. There can be no doubt that any service connected with “renting” of immovable property would fall within the ambit of section 65(105)(zzzz) of the Finance Act and is assessable to the service tax: Yet, the question whether “renting of such immovable property” by itself constitute a taxable service or not; especially when there has been no value addition provided by the service provider, i.e, landlord or lessor is raised. It is claimed by the petitioner that insofar as “renting of immovable property for use in the course or furtherance of business or commerce” is concerned, there is no distinctable value addition necessary and consequently, “renting of immovable property for use in the course or furtherance of business of commerce” by itself does not entail any value addition and, therefore, cannot be recorded as service.

4. Mr. E.K Ray, learned counsel for the Revenue, on the other hand, contends that the very judgment of the honourable/Delhi High Court, relied upon by the learned counsel for the petitioner, has been challenged by the Revenue in Special Leave to Appeal CC 16960 of 2010 before the Supreme Court of India and vide order dated. January, 10, 2011 (Union of India v. Home Solutions Retails India), the honourable Supreme Court has directed interim stay of operation of the impugned judgment and, there fore, no reliance could be placed upon such judgment by the petitioner for any purpose whatsoever.

5. Apart from the same, learned counsel for the Revenue submits that section 65(105)(zzzz) of the Finance Act has been amended by the Finance Act, 2010, whereby “renting of immovable property for use in the course or furtherance of business or commerce” has been amended and that “taxable service” would include “renting of immovable property for use in, the course or furtherance of business or commerce”. This amendment by the Finance Act, 2010 was passed after the judgment of the Delhi High Court and obviously not the subject-matter of challenge before the honourable Delhi High Court.

6. Apart from the aforesaid fact, learned counsel for the Revenue also placed reliance on a judgment of the honourable High Court of Punjab and Haryana in the case of Shubh Timb Steels Limited v. Union of India, [2011] 37 VST 46 (P & H), wherein challenge to the scope of levy on “service tax” of “renting of immovable property” was made and turned down by the said court vide its judgment dated 22nd November, 2010. He further submitted that the aggrieved parties thereto had moved the honourable Supreme Court against the judgment of the honourable Punjab and; Haryana High Court mentioned hereinabove and the prayer for interim orders before the honourable apex court was turned down.

7. In the light of the aforesaid facts, learned counsel for the. Revenue submits that it is the well-settled principles, of law that a presumption exists in favour of the constitutionality of a provision passed by the legis-lative and in the present case, it is the “renting of the immovable property” which is the “taxable event” and Parliament is endowed with the necessary legislative competence to enact the impugned enactment as well as the amendment. The learned counsel for the Revenue further submits that, it is within the competence of Parliament to give retrospective effect to any fiscal statute and no objection to the retrospectivity of any fiscal statute ought to-be entertained. Especially, since the impugned amendment was clearly clarificatory in nature and/therefore, would take effect from the date of the original enactment itself.

8. In the light of the aforesaid submissions and in view of the adjudication made by different High Courts on related subject, we are of the considered view that the scope and ambit of the present challenge is extremely harrow.

9. These points become necessary to be dealt with in connection with the related statutory provisions which are noted hereunder in a tabular form:

“Prior to Finance Act, 2010 Post amendment by Finance Act, 2010 Section 65(90a) ‘renting of immovable property’ includes renting, letting, leasing, licensing or other similar arrangements or immovable property for use in the course or furtherance of business or commerce but does not include: Section. 65(90a) ‘renting of immovable, property’ includes renting, letting, leasing, licensing or other similar arrangements of immovable property for use in the course or furtherance of business or commerce but does not include: (i) renting of immovable property by a religious body or to a religious body; or (i) renting or immovable property by a religious body or to a religious body; or (ii) renting of immovable property to an educational body, imparting skill or knowledge or lessons on any subject of field, other than a commercial, training or coaching centre (ii) renting of immovable property to an educational body, imparting skill or knowledge or lesions on any subject of field, other than a commercial training or coaching centre Section 65(105) ‘taxable Service’ means any service provided or to be provided—…. Section 65(105) ‘taxable service’ means any service provided or to be provided— (zzzz) to any person, by any other person in relation to renting of immovable property for use in the course or furtherance of business or commerce. (zzzz) to any person, by any other person, by renting of immovable property or any other service relating to such renting, for use in the course of or, furtherance of business dr. commerce. Explanation.—1. For the purposes of this sub-clause, ‘immovable property’ includes:— Explanation—1. For the purpose of this sub-clause, ‘immovable property’ includes:— (i) building and part of a building, and the land appurtenant thereto, (i) building and part of a building and the land appurtenant thereto

(ii) land incidental to the use of such building or part of the building (ii) land incidental to the use of such building or part of the building (iii) the common or shared areas and facilities relating thereto; and (iii) the common or shared areas and facilities relating thereto; and (iv) in case of a building located in a complex or an industrial estate, (iv) in case, of a building located in a complex or an industrial estate,

10. On a comparison of the relevant statutes as-noted hereinabove, it is clear that, section 65(90a) of the Finance Act, “renting of immovable property” has not undergone any amendment by the Finance Act of 2010. It is only section 65(105) “taxable service” which has undergone amendment to include as “taxable service” any service provided to any other person by renting of immovable property of any movable property or any other service relating to such renting for use in course of or furtherance of business or commerce.

11. On reading of the judgment of the Delhi High Court in the case of Home Solution Retail India Ltd., [2009] 22 VST 508 (Delhi), it is clear the therefrom that the honourable Delhi High Court has not taken into consideration the scope and ambit of section 65(90a) of the Finance Act relating to “renting of immovable property”.

12. We are of the considered view that since “renting of immovable property” itself is clearly covered by section 65(90a) of the Act which include “renting, lending, leasing, licensing or other similar arrangements of immovable property for use in the course or furtherance of business or commerce. Therefore, it appears that though section 65(90a) has been mentioned to in the aforesaid judgment, yet its impact and the scope and ambit of the said provision has not been discussed and the entire focus of the honourable Delhi High Court seems to have been made to the amendment of section 65(105)(zzzz) by the Finance Act. It is a well-settled principles, of law that, if a judgment proceeds without taking note of or ignoring relevant provision of law, the said judgment cannot be held to have correctly decided the case.

13. Apart from the above, the honourable Supreme Court in the case of Tamil Nadu Kalyana Mandapam Assn. v. Union of India, [2004] 135 STC 480 (SC) : (2004) 5 SCC 632, has clearly held that, the services rendered by “mandap” can be to termed as “property based services”. This judgment has been affirmed by a latter judgment of the honourable Supreme Court presided over by Justice S.H Kapadia (as His Lordship the then was) in the case of All India Federation of Tax Practitioners v. Union of India, [2007] 9 VST 126 (SC) : (2007) 7 SCC 527.

14. In the present case, we are clearly of the view that the nature of the transaction made by the petitioner with its tenant clearly amounts to renting of an immovable property for the purpose of business or commerce and is, therefore, clearly covered by section 65(90a) of the Finance Act, 1994 and “service tax” is clearly leviable thereon. Although challenge in the present case has been made to the Amendment Act of 2010. to section 65(105)(zzzz), we find no justification to entertain the present writ application since we are also of the view that the amendment is clearly clarificatory in nature and Parliament certainly possesses the necessary legislative competence to declare the said amendment to be retrospective in operation and, therefore, we do not find any error or lack of competence in such legislation.

15. In view of the facts as noted hereinabove, we find no merits in the present challenge and accordingly, the writ petition is dismissed. We may further note that the petitioner had approached this court at the stage where a show-cause notice had been issued to him and, therefore/while dismissing the writ application, we direct that the petitioner may respond the show-cause notice within a period of four weeks from today and the Revenue authorities may proceed in the matter in accordance with law.

V. Gopala Gowda, C.J:— I agree.