2011 (9) TMI 834 - AT - Service Tax

Waiver of pre-deposit - stay of recovery in respect of service tax - penalty - demand of service tax is under the head Construction of Residential Complex Services Held that - appellant constructed residential complexes for their clients. who, in turn, allotted the apartments to their employees for residential use. Considering the terms of the exclusion clause of the definition of residential complex ibid, prima facie , the activity undertaken by the appellant would fall within the ambit of this clause. The appellant also seems to have a fairly good case on limitation. waiver of pre-deposit granted

Summary

Issues:
Waiver of pre-deposit and stay of recovery in relation to service tax demand under "Construction of Residential Complex Services," invocation of extended period of limitation based on suppression of facts, interpretation of exclusion clause of the definition of "Residential Complex," applicability of Board's circular and Tribunal's decision in similar cases, prima facie case for the appellant against service tax demand, contesting the demand on the ground of limitation.

Analysis:
The appellant sought waiver of pre-deposit and stay of recovery regarding a service tax demand of Rs.1,55,77,725/- and equivalent penalty imposed for providing "Construction of Residential Complex Services." The demand was made under Section 65(105)(zzzh) of the Finance Act, 1994, for constructing residential complexes for a client from March 2007 to March 2008. The show-cause notice, issued on 08.07.2009, invoked the extended period of limitation due to alleged suppression of facts by the appellant, based on the internal auditors' report. The adjudicating authority held that the construction fell within the definition of "Residential Complex" and that the appellant should have paid service tax on the gross amount collected. It was also noted that the appellant suppressed facts and misinterpreted circulars, leading to the demand for service tax and penalties.

The appellant argued that the construction fell within the exclusion clause of the definition of "Residential Complex" as it was for personal use of the client. Reference was made to a Board's Circular and a Tribunal's decision supporting this interpretation in similar cases. The appellant claimed a prima facie case against the service tax demand and contested the demand based on limitation. The JCDR distinguished the present case from those considered in the circular and Tribunal's decision, arguing that only constructions directly for personal use were excluded from service tax, while indirect constructions through contractors were taxable.

Upon considering the submissions, the Tribunal found the issue to be highly debatable. The appellant was granted support from the Board's circular and the Tribunal's decision, indicating that the activity undertaken could fall within the exclusion clause of the definition of "Residential Complex." Given the debatable nature of the issue and the appellant's strong case on limitation, the Tribunal allowed the application for waiver of pre-deposit and stay of recovery of the adjudged dues. The appeal was directed to be listed for a hearing on a specified date due to the significant stakes involved in the case.