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In the plea seeking GST and Service Tax exemption on Hajj pilgrimage, Senior Advocate Arvind Datar on behalf of the petitioner today submitted before the Supreme Court that " the Government has taken a stand that hajj is a commercial activity. They say when you go to Badrinath-Kedarnath you don't get any exemption."

While arguing that the GST council's stand that Hajj is not a religious ceremony is grossly wrong, Datar further stated that going to hajj is not like undertaking a Char-Dham yatra.

Justice Khanwilkar questioned Datar's this line of argument and said, "Why have you taken a stand that going to Hajj is not akin to going to Char Dham yatra? Without going into that, you can make your case."

"I have to meet the arguments made by the GST Council. I have checked with Tirupati, there is no GST on laddoo prasad, or pooja ceremony, only on accommodation", said Datar in reply.

"Being a rationalist is also a religion in Hindus", Justice Khanwilkar remarked.

While making his submission in a plea filed seeking GST and Service Tax exemption on Hajj pilgrimage filed by a Tour Organizer Associations, Datar submitted before court that performance of Hajj is one of the five pillars of Islam.

Before the bench of Justices AM Khanwilkar, Abhay S Oka and CT Ravikumar, Datar suggested that among the two legal issues i.e. place of provision of service and whether Hajj is a religious ceremony or not, he should focus on issue regarding religious ceremony.

At this instance, the bench questioned Datar, "Who is the exemption for, the one who is providing service or the one who is utilising the service? What is the definition of service?"

To this, Datar referred to the Mega Exemption Notification and submitted that said notification was applicable to service provider and service receiver. Court said, "Service tax is not applicable to service receipeint"

Further, relying on the Hajj guide, Datar took court through the various ceremonies involved in the Hajj pilgrimage."Hajj is a mandatory religious duty for Muslims that must be carried out once in the lifetime of Muslims. One purifies their internal mind during those 5-6 days...", said Datar.

Trying to understand the conduct of a religious ceremony, the bench said that this religious ceremony begins when you reach the particular destination, the process of reaching that place is not under that conduct.

"You are posing a wrong question, the question is whether the exemption applies when you start from India, the answer to that is no. Whatever you do there, there is no tax. But when you start from here, your travel would be charged under service tax", said the bench.

However, comparing Hajj to Sabarimala, Datar said," People who leave for Mecca from here, they start wearing the white garment from here only, like for Sabarimala, you start the ceremony at a local temple and then you go to Sabarimala."

Justice Ravikumar quizzed Datar saying that, "You are only enabling the persons who are going to perform the Hajj, you are not going there yourself, why are you claiming relief of exemption for religious ceremony." 

Furter, in reply to Datar's submissions that Hajj is a religious ceremony, Court said, "Without going into these details, we can understand that Hajj is a religious ceremony, the distinction is between religious pilgrimage and religious ceremony. The exemption uses the word religious ceremony. When does that religious ceremony begin, that is the issue now. Only that part will be exempted."

Senior Advocate Gopal Sankaranarayanan talking about the violation of Article 14, submitted before court that when a classification is made between those who go by the Hajj committee and those who do not, the fact that only one category is exempted amounts to a patent discrimination.

In April, the top court had opined that if the tax exemption is allowed for Hajj Pilgrimage then everyone going to Varanasi may also claim the exemption. It had added that the exemption is for all cultures, it is not specific to Hajj.

All India Haj Umrah Tour Organizer Associations had filed a batch of petitions seeking the removal of GST and Service Taxes on the Hajj services provided to Hajis of India in Saudi Arabia.

Case Title: All India Haj Umrah Tour Organizer Association Mumbai Vs. Union of India & Ors.