2014 (4) TMI 587 - AT - Service Tax

Construction residential complex - Works contract - Assessee pays Vat as well as Service tax - Composition scheme - Held that - definition of works contract in Section 65(105)(zzzza) clearly covers construction of new residential complex or a part thereof. Therefore in the case of construction of a new residential complex, if the contract involves transfer of property in the execution of such contract leviable to tax sale of goods, can be classifiable as works contract. In this case, the appellants have registered for payment of tax in respect of portion involving transfer of property under the AP VAT Act and the appellant is engaged in the construction residential complex. Therefore, we find that the activity is clearly covered by works contract service. Revenue contended that, appellants were not eligible for composition scheme under works contract in view of the fact that the appellants had availed CENVAT credit on inputs and subsequently the appellants had already paid tax at the normal rate in the year 2009. However, ongoing through para 10 of the impugned order, it was seen that this payment was collected and paid towards preferential allocation and development service and not on the residential complex service. As regards CENVAT credit, the appellant cannot take credit on inputs and capital goods only and not on input services - payment of service tax by the appellants by opting for composition scheme on the services rendered by them during the relevant period is in accordance with law - Decided in favour of assessee.

Summary

Issues:
1. Consideration of waiver of predeposit and stay against recovery.

Analysis:
The judgment by the Appellate Tribunal CESTAT Bangalore involved a case concerning a builder/developer of commercial and residential complexes, specifically related to a project named "Project Celestia" in Hyderabad. The appellant had registered under state VAT law and the Finance Act, 1994 for payment of VAT and Service Tax on works contract service from April 2009 onwards. The issue revolved around the classification of the appellant's service as works contract service for the purpose of service tax payment. The proceedings initiated for recovery of service tax culminated in a demand of Rs. 14,09,78,092/- with interest and penalties under Sections 77 and 78 of the Finance Act. The appellant claimed that they were constructing residential complexes and selling individual flats to buyers, emphasizing that their services could not be classified as works contract service due to the nature of their agreements with buyers.

The Tribunal examined the definitions of "residential complex" and "construction of complex" under the Finance Act, 1994. After amendments, liability arose even when flats were sold to individual buyers, and the definition of construction of residential complex applied to cases with more than 12 apartments in a single complex. The Tribunal disagreed with the Commissioner's observation that the service went out of the definition of works contract due to individual agreements, stating that the characteristics of works contract were present in the appellant's activities. The Tribunal referred to the Supreme Court decision in Larsen and Toubro Ltd. case, which held that construction of residential complexes and transfer of individual flats constituted works contract for VAT purposes.

The Tribunal further addressed the issue of the appellant's eligibility for the composition scheme under works contract. The appellant had availed CENVAT credit on inputs and paid tax at the normal rate in 2009, but the payment was allocated towards preferential allocation and development service, not residential complex service. The Tribunal concluded that the appellant's payment of service tax under the composition scheme was in accordance with the law, setting aside the impugned order and allowing the appeal with any consequential relief to the appellants.