2014 (6) TMI 97 - AT - Service Tax

Waiver of pre-deposit of service tax - construction of complex service and commercial and industrial construction service - Held that - land owner executed a power of attorney in favour of the applicants for entering upon the land for construction of the complex. The title of the land is not transferred to the applicants. In these circumstances, prima facie we find that the applicants are not the owner of the land on which the complex is constructed. As the applicants had undertaken construction of complex service which is taxable, therefore, prima facie the applicants have not made out a case for total waiver of the service tax - Conditional stay granted.

Summary

Issues:
- Waiver of pre-deposit of service tax
- Interpretation of "construction of complex service"
- Ownership of land in construction projects
- Financial hardship plea

Waiver of Pre-Deposit of Service Tax:
The applicant sought waiver of pre-deposit of service tax amounting to Rs.46,75,705, contending that they did not provide any taxable service. The Commissioner (Appeals) directed the applicant to deposit Rs.47,69,634 for appeal hearing, which the applicant failed to comply with, leading to dismissal of the appeal. The Tribunal found that the applicant had undertaken construction of complex service, which is taxable. However, considering the circumstances, the Tribunal directed the applicant to deposit Rs.20,00,000 within eight weeks, waiving the pre-deposit of the remaining amount, with recovery stayed during the appeal.

Interpretation of "Construction of Complex Service":
The applicant argued that they did not provide construction of complex service, as they had agreements with the landowner for construction of a residential complex and collected amounts for construction and land on behalf of the owner. They contended that the explanation added to the definition of 'construction of complex service' was prospective, and as the construction was undertaken before the effective date of the explanation, the demands were not sustainable. The Revenue, however, asserted that the applicants did provide construction of complex service as they developed the land under a power of attorney but did not become the owner of the land.

Ownership of Land in Construction Projects:
The Tribunal noted that the landowner executed a power of attorney in favor of the applicants for construction, but the title of the land was not transferred to the applicants. It was observed that the applicants were not the owners of the land on which the complex was constructed. Despite the applicants undertaking construction of the complex service, which is taxable, the Tribunal found that they had not established a case for total waiver of the service tax.

Financial Hardship Plea:
The Tribunal highlighted that no financial hardship was pleaded by the applicants. Considering the facts and circumstances, the Tribunal directed the deposit of a specific amount within a specified time frame, with further proceedings subject to compliance. The waiver of pre-deposit and stay on recovery were contingent upon the deposit as directed.

This judgment delves into the nuances of service tax liability in construction projects, emphasizing the importance of ownership and the nature of services provided. The decision reflects a balanced approach, taking into account both legal interpretations and the practical implications on the parties involved.