2012 (8) TMI 654 - AT - Service Tax

Commercial or industrial construction service - construction service by organisation working on no-profit no-loss basis, engaged in imparting knowledge to poor students, to other organisation engaged on same principle and in same field - assessee contended that the definition of commercial and industrial construction is meant for construction of those buildings which are used for commercial purpose - said two organisations working as NPO should not be considered as commercial organisations - reliance placed on Board s Circular No. 80/10/2004-ST - Held that - It is evident from MOA of organisations, that same are working on no profit basis. Hence, construction activity would not be covered by the definition of commercial and industrial construction services - Decided in favor of assessee

Summary

Issues:
Prayer to dispense with pre-deposit of service tax and penalty under Section 78 of the Finance Act.

Analysis:
The appellant sought relief from the condition of pre-deposit of service tax and penalty amounting to Rs.15,55,898 imposed under Section 78 of the Finance Act, along with other penalties. The main demand was confirmed due to construction activities undertaken for specific societies, namely M/s Technocrates & Managers Society of Advance learning and National Society of Engineering and Development. Both societies were registered under the Rajasthan Societies Act 1958, with a memorandum stating their non-profit motive and focus on educational facilities.

The appellant argued that the construction activities for these societies did not fall under commercial or industrial construction services as they were created for educational purposes without profit motives. Reference was made to a board's Circular stating that constructions for educational, religious, charitable, health, sanitation, or philanthropic purposes, not for profit, are non-taxable. The appellant contended that since the societies operated on a no-profit basis, their construction activities should not be considered commercial.

In response, the respondent argued that despite the societies' non-profit memorandum, there was no evidence of whether they actually made a profit. It was asserted that providing education is a commercial activity and should be covered under commercial or industrial construction services. However, after considering both sides' submissions and the board's circular, the Tribunal found that the societies' non-profit nature exempted them from being classified as commercial or industrial constructions. Therefore, the appellant made a good prima facie case in their favor on this issue.

Additionally, a small part of the demand was confirmed based on constructing houses for individuals, which the Tribunal found to be for individual residential houses and not part of a residential complex. Consequently, the Tribunal concluded that the appellant had a strong prima facie case on this ground as well. As a result, the Tribunal dispensed with the pre-deposit condition of service tax and penalties, granting relief to the appellant and allowing the stay petition.