2013 (12) TMI 269 - AT - Service Tax

Demand of service tax - Maintenance and Repair Service - Assessee contends that they do not provide any maintenance or repair service they are just agents - Held that - appellants are required to make payment relating to Revenue assessment, insurance, all other taxes, levies, electricity and water charges and deposits in respect of common electrical and water pumps and other installations. In addition they are paying for the maintenance and repair of common areas and facilities, wages or watchmen, sweepers etc. and some expenses relating to maintenance of the housing blocks - appellants are obliged to maintain a separate account in any bank of the deposits taken and use the same amount towards the outgoings. Further section 6 puts responsibility for payment of outgoings on the appellants till the property is transferred. Appellants are not in the business of maintenance or repair service or management of immovable property. The appellants cannot be held as provider of maintenance or repair service as they are only paying on behalf of various buyers of flats to various authorities (Municipal Corporation, Revenue authorities etc.) and various service providers (such as security agency, cleaning service providers etc.) and they are not charging anything on their own. The payments are made cost on cost basis and the same is debited from the deposit account. They act only as trustee or as pure agent. When the co-operative society is formed even the deposit account is shifted to Flat Owner s Co-operative Society. We also note that this is a statutory obligation on the appellants in terms of Maharashtra Ownership Flats (Regulation of the Promotion of Construction, sale, management and transfer) Act, 1963 - Therefore, appellants are not providing the maintenance or repair service to the buyers of the flats - Decided in favour of assessee.

Summary

Issues Involved:
Appellants providing "Maintenance and Repair" service to flat buyers, liability to pay service tax on deposits, applicability of Maharashtra Ownership Flats Act, 1963.

Analysis:

Issue 1: Appellants providing "Maintenance and Repair" service
The appellants, as builders/developers, sell residential flats and collect one-time maintenance deposits from buyers. The Service Tax Department demanded service tax on these deposits, considering them as "Maintenance and Repair" services under the Finance Act, 1994. The appellants argued that they act as trustees of the funds and are not providing any service directly. They pay for various expenses until a Co-operative Housing Society is formed, as mandated by the Maharashtra Ownership Flats Act, 1963. The Circulars and case laws cited by the appellants supported their contention that no service tax should be levied for statutory duties. The Tribunal noted that the appellants were not engaged in the business of maintenance or repair services but were fulfilling statutory obligations until the property was transferred.

Issue 2: Liability to pay service tax on deposits
The Appellate Tribunal examined the nature of the amounts collected from flat buyers, which included charges for maintenance and repairs, wages of staff, insurance, taxes, and other expenses. The Tribunal referred to the Maharashtra Ownership Flats Act, 1963, which mandates the promoters to maintain a separate account for such deposits and use them for outgoings until property transfer. The Tribunal concluded that the appellants were not providing maintenance or repair services but acting as trustees or agents, following statutory requirements. Therefore, the Tribunal held that the appellants were not liable to pay service tax on the deposits collected.

Issue 3: Applicability of Maharashtra Ownership Flats Act, 1963
The Tribunal analyzed the provisions of the Maharashtra Ownership Flats Act, 1963, which impose obligations on promoters regarding the maintenance of separate accounts for deposits and payment of outgoings until property transfer. The Tribunal noted that the appellants' actions were in line with the requirements of the Act, and they were not engaged in providing maintenance or repair services as a business activity. As the appellants were fulfilling statutory duties under the Act, the Tribunal set aside the Service Tax Department's demand for service tax on the deposits and allowed the appeals.

In conclusion, the Appellate Tribunal ruled in favor of the appellants, stating that they were not providing maintenance or repair services but were fulfilling statutory obligations under the Maharashtra Ownership Flats Act, 1963. Therefore, the demand for service tax on the deposits collected from flat buyers was set aside, and the appeals were allowed.