2013 (8) TMI 641 - AT - Service Tax

Management, Maintenance and Repair Service u/s 65 (105) (zzg) - The assesse was doing maintenance and repair activity for such common facilities - Assesse had not been paying any service tax on amounts recovered from the clients for maintenance or repair of common facilities - Revenue was of the view that such service was classifiable under Management, Maintenance and Repair Service - Held that - In the case some agencies which were doing the maintenance work might had paid service tax on some part of the value for which tax was demanded in the absence of clear proof - the earlier order was and direct the applicant to make a pre-deposit of 50% of the tax amounts demanded in each of the appeals within eight weeks of the order - Subject to such pre-deposit, pre-deposit of the balance dues arising from the impugned orders shall stand waived and collection thereof stayed during the pendency of the appeals - the Bench had already called for pre-deposit of 50% of the tax amount on the same issue for the previous period Decided partly in favor of assesse.

Summary

Issues:
Classification of service for maintenance and repair of common facilities in a business complex under service tax laws. Applicability of Rule 5 of the Service Tax (Determination of Value) Rules, 2006. Pre-deposit requirement for appeals challenging service tax demands.

Analysis:
The judgment revolves around the classification of services provided for the maintenance and repair of common facilities in a business complex under service tax laws. The applicant, who owns a business complex, leases out parts of the premises to various clients and undertakes maintenance activities for common areas like a central hall, lifts, escalators, etc. The Revenue contended that such services fall under 'Management, Maintenance and Repair Service' attracting service tax, leading to the issuance of show-cause notices for non-payment of service tax on amounts recovered for maintenance. The Tribunal confirmed the tax demands for two periods along with interest and penalties under the Finance Act, 1994, prompting the applicant to file appeals challenging the orders.

The applicant argued that the expenses recovered for maintenance should not be considered as part of the service value post the striking down of Rule 5 of the Service Tax Rules, 2006 by the Delhi High Court. They asserted that the primary service provided is renting out immovable property on which service tax is paid, while additional amounts collected represent reimbursement for maintenance expenses shared proportionately by each client based on actual expenditure. Additionally, the applicant cited a precedent from the Bangalore Bench of the Tribunal granting a total waiver of pre-deposit in a similar case, seeking a similar treatment for their appeals.

In response, the Revenue maintained that the applicant not only rents out property but also provides Maintenance and Repair Services to clients for common facilities, which should be separately classified under service tax laws. They highlighted the distinction between the present case and the Bangalore Bench's decision, emphasizing the absence of evidence showing another agency paying service tax for the disputed services. The Tribunal considered both arguments, acknowledging the previous pre-deposit order on the same issue and directed the applicant to make a 50% pre-deposit of the tax amounts demanded in each appeal within eight weeks, with the balance dues waived subject to this pre-deposit.

In conclusion, the judgment clarifies the classification of services for maintenance and repair of common facilities in a business complex under service tax laws, addressing the impact of relevant legal provisions and precedents on the tax liability of the applicant.