2013 (9) TMI 255 - AT - Service Tax

Construction of Residential Complex u/s 65(105)(zzzh) Undivided Share of Land - waiver of Pre-deposit - The appellant was engaged in the business of developing properties and constructing residential complex - During the period 2006-07 to 2008-09, they did not pay service tax on consideration received for such activity - Whether there was service tax liability in cases where undivided share of land was first sold were registered and thereafter construction was done - Held that - Prima facie the Commissioner had given appropriate abatement - The matter of double counting of same consideration was to be seen at the time of final hearing - Relying upon LCS City Makers Pvt. Ltd. Vs CST Chennai 2012 (6) TMI 363 - CESTAT, CHENNAI - There was some merit in the argument regarding land development - There was no merit in the argument regarding time bar because at no stage the Board clarified that if land was sold first and then construction is undertaken, there was no service tax liability - The appellant was directed to make a pre-deposit of 40 lakhs - Upon such deposit, the pre-deposit of balance of dues to be waived and stayed till pendency of appeal Conditional Stay Granted.

Summary

Issues:
1. Service tax liability on consideration received for property development and construction.
2. Applicability of abatement on the value of undivided share of land.
3. Alleged double counting of consideration leading to excess demand.
4. Service tax liability on land development charges.
5. Interpretation of Board's circular and its impact on service tax liability.
6. Time-barred nature of the demand.

Analysis:
1. The appellant, engaged in property development and construction, was found to have not paid service tax on consideration received for the taxable activity. The Revenue issued a show cause notice leading to a confirmed demand of Rs.1,11,53,419/- along with interest and penalties. The appellant contended that no service tax was due as they were constructing on their own land, citing a Board's Circular. The Tribunal considered the arguments and directed a pre-deposit of Rs.40,00,000/- for admission of the appeal.

2. The appellant argued for abatement on the value of undivided share of land collected from buyers, claiming inappropriate calculation by the Commissioner. The Tribunal found prima facie that appropriate abatement was given by the Commissioner. However, the issue of alleged double counting of consideration was to be examined further during the final hearing.

3. An additional issue raised was the service tax liability on land development charges recovered from prospective buyers. The appellant contended that no service was being rendered at that stage, while the Revenue argued that the charges were collected at the time of sale, indicating a service provided. The Tribunal acknowledged some merit in the appellant's argument regarding land development but emphasized the lack of clarity from the Board regarding the tax liability in such scenarios.

4. The interpretation of the Board's circular was crucial in determining the service tax liability. The appellant claimed a genuine belief that no tax was due based on the circular's ambiguity. The Tribunal, however, noted that the circular's lack of clarity did not absolve the appellant of the tax liability. The issue of being time-barred was also raised, with the Tribunal finding that even if the time bar contention was rejected, the demand would reduce to Rs.34,59,081/-.

5. The Tribunal considered the arguments from both sides regarding the service tax liability on the property development and construction activities. The Revenue highlighted a previous Tribunal decision supporting tax liability in similar cases. The Tribunal directed the appellant to make a pre-deposit for the appeal to proceed, indicating a balanced approach in considering the various contentions raised during the proceedings.