2010 (11) TMI 81 - AT - Service Tax

Construction of residential complex service - service provided by the appellant to Govt. of India for providing as residential accommodation for the employees of the Income Tax department CPWD and Income tax Dept not treatable as separate entities merely because service provided to CPWD which handed over the same to IT Dept - service provided by the appellant is to be treated as service provided to Govt. of India directly and end use of the residential complex by Govt. of India is covered by the definition Personal Use in the explanation to definition of residential complex service, the other aspects need not be considered - order cannot be sustained and accordingly the same is set-aside - Appeal is allowed

Summary

Issues:
1. Whether the construction services provided by the appellant for the residential quarters fall under the definition of "Construction of Complex" service for service tax liability?
2. Whether the show cause notice issued for service tax liability was time-barred?
3. Whether the contract between the appellant and CPWD should be considered a works contract for VAT payment instead of service tax liability?
4. Whether penalties imposed under various sections of the Finance Act, 1994 are justified?

Issue 1: Construction of Complex Service Liability
The appellant argued that the construction services provided were for the Govt. of India directly, and thus, excluded from the definition of "Construction of Complex" service. The advocate highlighted the definition of "Personal Use" to support the exclusion. The Departmental Representative (DR) contended that the services were not directly provided to the Govt. of India but through CPWD, making the appellant liable for service tax. The tribunal agreed with the appellant, emphasizing that CPWD acted on behalf of the President of India, and the absence of a separate agreement between CPWD and the Income Tax department supported the appellant's case. The tribunal held that the construction was for personal use by the Income Tax department, excluding it from service tax liability.

Issue 2: Time-Barred Show Cause Notice
The appellant argued that a portion of the demand was time-barred as the show cause notice was issued after the service tax period. The tribunal found that even if CPWD was considered a separate entity, the appellant reasonably believed that services to CPWD and the Income Tax department were part of the Govt. of India, justifying the belief that no service tax was payable. The tribunal also noted that the agreement stated the service receiver's liability for any tax, thus rejecting the extended time limit invocation and penalties imposed.

Issue 3: Works Contract vs. Service Tax Liability
The appellant contended that the contract with CPWD should be treated as a works contract, and VAT was paid accordingly, exempting them from service tax liability before a specific date. The tribunal referenced a relevant decision and concluded that construction of a new residential complex under a works contract was not liable for service tax before a certain date, supporting the appellant's argument.

Conclusion
The tribunal ruled in favor of the appellant, holding that the construction services were directly provided to the Govt. of India, falling under the exclusion clause of "Construction of Complex" service. The tribunal set aside the impugned order, allowing the appeal with consequential relief to the appellant. The judgment highlighted the distinctions between direct service provision to the Govt. of India and the interpretation of relevant definitions and agreements in determining service tax liability and penalties.