2015 (10) TMI 1925 - AT - Service Tax

Waiver of pre deposit - Construction service of flats and commercial complex - Held that - The present fact is that even individual flats sold on the basis of construction agreement are covered under the levy of service tax from that day. However, Commercial or Industrial Construction Services remains the same and the construction of a mall was clearly covered by the service even prior to 1.7.2010 and the appellant did not pay service tax even for that period. - On going through the balance sheet and the records produced by the appellant, we find that the financial difficulty appears to be correct. - Partial stay granted.

Summary

Issues:
1. Service tax liability on construction services provided to landowners and customers.
2. Refund application pending before competent authority.
3. Financial crunch of the appellant.
4. Applicability of service tax prior to 1.7.2010.
5. Prima facie case for service tax liability on landowner's share.

Analysis:

1. The case involved a demand for service tax on construction services provided by the assessee for two ventures - a residential complex and a commercial complex. The service tax demand was made for the period 2005-2006 to 2009-2010, totaling Rs. 1,03,95,172. An amount of Rs. 1,02,64,846 was confirmed post-adjudication, along with interest and penalty under section 78 of the Finance Act 1994.

2. The appellant contested the demand, highlighting certain amounts refunded to customers due to agreement cancellations and payments made to other departments on behalf of customers. Additionally, a refund application of Rs. 12,13,633 was pending before the competent authority, which was not considered during adjudication.

3. The appellant raised concerns about financial difficulties and submitted the latest balance sheet and profit and loss account. The financial crunch was emphasized, along with a plea for limitation.

4. The appellant argued that as per CBEC Circular No.151/2/2012 ST, no service tax was payable before 1.7.2010. The applicability of service tax prior to this date was a crucial point of contention.

5. The Tribunal analyzed the definition of "Construction of Residential Complex" as per Section 65 (91a) and found that individual flats sold on the basis of construction agreements were liable for service tax. However, the construction of a mall was also subject to service tax even before 1.7.2010. The Tribunal noted that the landowner's share, constituting approximately 55% of the built-up space, did not prima facie establish a case for service tax liability, amounting to around Rs. 95,00,000.

6. Considering the financial difficulties faced by the appellant and the need for further examination of liability, the Tribunal directed the appellant to deposit Rs. 40,00,000 within six weeks. Compliance was to be reported by a specified date, failing which the Revenue could recover the entire dues. If the mentioned amount was deposited, the requirement for balance dues was waived, and a stay against recovery was granted during the appeal's pendency.