2014 (5) TMI 648 - AT - Service Tax

Waiver of pre deposit - Construction of Complex services - Held that - It is undisputed that the appellant had rendered services/ constructed 112 residential buildings for Surat Municipal Corporation. It is also undisputed that these residential buildings were allotted to the families who are identified as Below Poverty Line families based on lottery system. It is not very clear from the records that Surat Municipal Corporation has charged any amount from these families. We find that the contract entered by the appellant with Surat Municipal Corporation specifically talks about the execution of property only for construction of building under JNURMP scheme and they are paid by Surat Municipal Corporation. Prima-facie, we are of the view that the said construction activities of the appellant may not be covered under the taxable category of Commercial Construction - Stay granted.

Summary

Issues:
1. Whether the appellant is liable to pre-deposit an amount under Section 77 and 78 of the Finance Act, 1994 for providing construction services to Surat Municipal Corporation.
2. Whether the services provided by the appellant fall under the taxable category of Commercial Construction.
3. Whether the exemption provided by the Central Government on service tax liability for residential premises constructed under specific schemes is applicable in this case.

Analysis:
1. The appellant filed a stay petition seeking the waiver of pre-deposit of Rs. 16,64,677/-, interest, and penalties under Section 77 and 78 of the Finance Act, 1994. The lower authorities had imposed these liabilities for providing services categorized as 'Construction of Complex' to Surat Municipal Corporation from 01.02.2010 to 30.06.2010. The appellant contended that the residential buildings constructed were allocated to families Below Poverty Line without any evidence of payment by the corporation.

2. The appellant's counsel argued that the construction of 112 residential buildings was done under the JNURMP scheme and transferred to Surat Municipal Corporation for BPL families. The counsel relied on precedents like Khurana Engineering Limited and Sima Engineering Constructions to support the argument that the services provided should not be considered taxable commercial construction. The departmental representative contended that the services were taxable as the corporation did not provide the residential dwellings free of cost to BPL families.

3. The appellant highlighted the exemption from service tax liability on residential premises constructed under JNURMP and Rajiv Awaas Yojna, citing Notification No. 28/2010-ST dated 22.06.2010. After considering the submissions and records, the Tribunal found that the appellant had constructed buildings for Surat Municipal Corporation under the JNURMP scheme for BPL families without evidence of any charges levied on the beneficiaries. The Tribunal concluded that the construction activities may not fall under the taxable category of Commercial Construction, granting a waiver of pre-deposit and stay on recovery pending appeal disposal.

This judgment clarifies the applicability of service tax on construction services provided to government entities for welfare schemes and emphasizes the importance of specific contractual terms and exemptions in determining tax liabilities.