In this batch of writ petitions preferred under Article 226 of the Constitution of India, the constitutional validity of Section 65(105)(zzzz) of the Finance Act, 1995 (for short „the 1995 Act?) and Section 66 as amended by the Finance Act, 2010 (for brevity „the 2010 Act?) is called in question. The matters were initially placed before a Division Bench wherein the learned counsel for the parties raised many a submission and regard being had to the nature of the cases, the Division Bench thought it appropriate that the controversy should be dwelled upon by a larger Bench. Thereafter, the matters have been placed before us.

2 For the sake of clarity and convenience, we shall advert to the facts adumbrated in W.P.(C) No.3398/2010 and deal with the contentions canvassed by the learned counsel for the parties in all the writ petitions as the issue is common to all. The petitioner, a registered company under the Companies Act, 1956, has taken commercial property / shops on rent for carrying on its retail business. It takes immovable property by way of lease or licence and once the lease deed or the deed of licence is entered with the owner, there is no continuous flow of transaction between them. The tenant is entitled to use the premises for a fixed tenure under the agreement and the transaction with the owner is a onetime transaction. The transactions are principal to principal and there is no value addition by providing the premises on lease / licence by the owner of the property. The petitioner, as pleaded, is a substantial contributor to the sustained growth and development of the national economy and has contributed huge amounts to the revenue by payment of taxes, charges and cess under diverse heads and the premises occupied by it establishing commercial establishments like shops are meant for diverse situations and, accordingly, arrangements have been made. The consideration paid by the petitioner under the lease deed or agreement of licence is purely a consideration for acquiring the occasional and possessory rights of these premises and utilizing the same. The premises that have been taken by the petitioner have been referred to in the petition and it is urged that in the case of the agreements that have been entered with the respective owners, the liability rests with the owners to pay the service tax but the owners insist upon the petitioner to make payment of the service tax. It is contended that an artificial liability has been created on the tenants by the Finance Act, 1994 which introduced the service tax. Reference has been made to sub-section 90(a) which was inserted in Section 65 of the Finance Act, 1994 by the Finance Act, 2007 to tax any “service provided 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”. The renting of immovable property has been defined to include renting, letting, leasing, licensing and other similar arrangements of immovable property for use in the course of furtherance of business or commerce including use as factory, building, warehouse, exhibition halls, multiple use building, etc. The said provision came into force with effect from 1.6.2007. It is urged that contrary to the express words of the provisions of the Act, the first respondent, placing an erroneous interpretation on Section 65(105)(zzzz) as it stood in 2007, issued a notification No.24/2007 dated 22.5.2007. After the notification was issued, a circular dated 4.1.2008 was issued by the Ministry of Finance of the Union of India. The constitutional validity of the notification and the circular was questioned before this Court in the case of Home Solution Retail India Ltd. v. Union of India, 158 (2009) DLT 722 (DB).

3. In the case of Home Solution Retail India Ltd. (supra), it was contended that the notification and circular had come into existence by absolute fallacious interpretation placed on Section 65(105)(z