2015 (1) TMI 186 - AT - Service Tax

Waiver of pre deposit - Construction of Residential Complex service - contravention of the provisions of Section 68 of Chapter V of Finance Act, 1994 read with Rule 6 of Service Tax Rules, 1994 - Held that - applicant constructed 72 flats. Out of that, the dispute relates to 24 flats of the land owner s share. The Revenue determined the value on the basis of the value of the similar flats. The main contention of the Ld. Advocate is that the applicant had not received any consideration in the form of money in respect of these 24 flats of the land owner s share and only the land is the consideration and therefore, tax would demanded on the basis of the cost of the land. Prima facie, we are unable to accept the contention of the Ld. Advocate. In the present case, there is no dispute regarding the consideration received for the service is not wholly or partly consisting of money and therefore Rule 3 of the Service Tax (Determination of Value) Rules, 2006, would be invoked. tax was assessed on the basis of the value of the similar flats and therefore, prima facie, the tax was determined properly. On a query from the Bench, the Ld. Advocate submits that the Revenue has already allowed abatement while determining the tax. Hence, the applicant is failed to make out a prima facie case for waiver of pre-deposit of entire amount of duty along with interest and penalty. - Partial stay granted.

Summary

Issues:
1. Liability to pay service tax on construction of residential complex service.
2. Dispute over payment of service tax for construction of 24 flats.
3. Interpretation of Rule 3 of Service Tax (Determination of Value) Rules, 2006.
4. Consideration for service not wholly or partly consisting of money.

Analysis:
The judgment deals with the liability of an applicant providing taxable service under the category of 'Construction of Residential Complex service.' The applicant entered into a joint venture agreement for constructing 72 flats, owning 48 flats and paying service tax for those. However, a dispute arose concerning the remaining 24 flats of the land owner's share. A show cause notice was issued, alleging failure to pay service tax for these 24 flats, leading to a demand of tax, interest, and penalty. The Ld. Advocate for the applicant argued that tax should only apply to the land value of the 24 flats, not their entire value, citing Section 67 (1) (II) of the Finance Act. The Revenue, represented by Ld. AR, relied on Rule 3 of Service Tax (Determination of Value) Rules, 2006, stating the value should be based on the gross amount charged for similar service provided to others.

The Tribunal examined the submissions and records, noting that the Revenue determined the value based on the similar flats' value, as per Rule 3. The Ld. Advocate contended that since no money consideration was received for the 24 flats, tax should be demanded based on the land cost. However, the Tribunal found no dispute that the consideration was not wholly or partly in money, invoking Rule 3 to determine the value. The Tribunal highlighted that Rule 3 mandates the value to be equivalent to the gross amount charged for similar service, which was done in this case. The Ld. Advocate mentioned the Revenue's allowance of abatement during tax determination but failed to establish a prima facie case for waiving the pre-deposit of the entire tax amount, interest, and penalty.

Consequently, the Tribunal directed the applicant to make a pre-deposit within a specified period, with the balance amount of tax, interest, and penalty waived upon compliance. The recovery of the waived amount was stayed pending the appeal's disposal. The judgment emphasized adherence to Rule 3 in determining the value of taxable services where consideration is not wholly or partly in money, rejecting the applicant's argument for tax calculation based solely on the land cost for the 24 flats.