2015 (4) TMI 661 - HC - Service Tax

Demand of service tax - rent which had been received in the matter of allotment of plots by the assessee to use for construction for business/commercial purposes during the terms of the lease - an act of sovereign/public duties/functions or not - Held that - In view of the definition of expression of renting of immovable property read with Explanation, in our opinion, will include the lease of various plots allotted by the assessee for business/ commercial purposes and rent charged/ collected in respect of the lease so executed would necessarily be subjected to service tax. - The Tribunal appears to be justified in recording that the letting of vacant land by way of lease or license irrespective of the duration or tenure for construction of building or temporary construction for use in the course or furtherance of business or commerce is taxable w.e.f. st July, 2010 in view of Clause (v) of Explanation 1 to Section 65 (105) (zzzz) of the Finance Act, 1994. So far as the term lease is concerned, it may be recorded that it has not been defined under the Finance Act, 1994. The term lease would cover a lease for any period including a lease in perpetuity, as will follow from simple reading of Section 65 (90a). The Finance Act, 1994 does not carve out any distinction in the mater of long term lease/lease in perpetuity or lease for short duration, so far as the charging section is concerned. - No illegality in the conclusions drawn by the Tribunal that the lease of immovable property under Section 65 (105) (zzzz) would be covered for service tax, irrespective of the fact that the lease is short term or long term or lease in perpetuity. - Letting of immovable property for consideration, which is determined on the basis of offers received from public at large by the assessee Greater Noida Industrial Development Authority is a service provided for consideration and not on payment of statutory fees, neither it is a statutory service performed by the assessee. It may be that the statute permits such activities of letting out of immovable property for augmenting its finances but the same cannot be termed as the service in public interest nor it is a mandatory or statutory functions of the Development Authority. Accordingly such activity of leasing, do constitute a taxable service, in our opinion. If the Tribunal has held that only rent charged be considered for computation of service tax, it will not mean that the Tribunal has held that a part of the same transaction was taxable and part of it as not taxable. In our opinion, the Tribunal has rightly held that the lease of open land for use as commercial/business purpose, as an taxable event, but what amount is to be taken into consideration for computation of service tax has been confined to the periodical rent only. The plea raised to the contrary by the learned counsel for the appellant has therefore, to be rejected. - questions as raised by means of the present excise appeal are answered against the assessee and in favour of the department - No error in the order of the Tribunal - Decided against assessee.

Issues Involved:
1. Permissibility of a second show cause notice for raising a demand of service tax.
2. Coverage of long-term leases of vacant land under "taxable service" as per Section 65(105)(ZZZZ) of the Finance Act, 1994.
3. Whether the Greater Noida Industrial Development Authority can be considered as discharging "sovereign functions" and thus outside the purview of service tax.
4. Taxability of leases granted in respect of vacant land before 1.7.2010 under the Finance Act, 1994.

Detailed Analysis:

1. Permissibility of a Second Show Cause Notice:
The appellant contended that the second show cause notice dated 17th October 2012 was non est as it overlapped with the period covered by the first show cause notice dated 22nd March 2012. The Tribunal remanded the matter to the Commissioner for de-novo adjudication to examine the plea of overlapping. The High Court upheld this remand for specific findings on the overlap issue, allowing the appellant to raise all legal and factual issues during the remand proceedings.

2. Coverage of Long-Term Leases of Vacant Land:
The Tribunal's decision that the lease of vacant land for business/commercial purposes is taxable under Section 65(105)(ZZZZ) was upheld. The Court clarified that the term/period of the lease, whether short-term, 90 years, or in perpetuity, does not affect the taxability under the Finance Act, 1994. The Court dismissed the appellant's argument that long-term leases amount to a transfer of ownership and thus should not be taxed.

3. Sovereign Functions and Service Tax:
The appellant's claim that it performs sovereign functions and thus should be exempt from service tax was rejected. The Court noted that the Finance Act, 1994 does not distinguish between a statutory body and an individual regarding service tax liability. The Court referred to a circular clarifying that activities by a sovereign/public authority for consideration are taxable if they fall within the scope of a taxable service, irrespective of the statutory nature of the authority.

4. Taxability of Leases Before 1.7.2010:
The Tribunal's decision that leases of vacant land for construction for business/commercial purposes are taxable from 1st July 2010 was upheld. The Court agreed with the Tribunal's interpretation that the Finance Act, 1994 includes such leases within the definition of "renting of immovable property" for service tax purposes.

Conclusion:
The High Court dismissed the appeal, affirming the Tribunal's decision. The Court found no merit in the appellant's arguments regarding the second show cause notice, the nature of long-term leases, the claim of sovereign functions, and the taxability of leases before 1.7.2010. The Tribunal's interpretation of the Finance Act, 1994, and its application to the appellant's activities were upheld, confirming that the lease of vacant land for business/commercial purposes is subject to service tax.

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