2016 (2) TMI 690 - AT - Service Tax

Demand of service tax on Management Maintenance or Repair service collected from Flat owners. - It was contended that builder is under obligation to maintain the building and the appellant only taken re-imbursement of various services which was provided by various service provider. Therefore the appellant has neither provided the service nor retained the amount of maintenance with them - Held that - In this fact the appellant is not liable for service tax - service tax demand on Management Maintenance or Repair service is clearly unsustainable and therefore same is set aside. - Decided in favor of assessee.

Summary

Issues:
Service tax demand on Transport of Goods by Roads Service and Management, Maintenance or Repair Service; Imposition of penalty under Section 78.

Analysis:
1. Service Tax on Transport of Goods by Roads Service:
The appeal challenged the Order-in-Original confirming service tax demand on Transport of Goods by Roads Service and Management, Maintenance or Repair Service. The appellant had paid a certain amount before the issuance of the show cause notice. The Tribunal upheld the demand of service tax on GTA service as there was no dispute about its taxability. The appellant's prompt payment of service tax along with interest before the show cause notice was considered, leading to the waiver of penalty under Section 78. The Tribunal found no intention of evasion and upheld the service tax demand on GTA service.

2. Service Tax on Management, Maintenance or Repair Service:
Regarding the service tax on Management, Maintenance, or Repair Service collected from flat owners, the Tribunal analyzed the statutory provisions of the Maharashtra Ownership Flat Act, 1963. It was noted that the builder was obligated to maintain the building and the appellant had only taken reimbursement for services provided by various service providers. Citing a relevant case law, the Tribunal concluded that no service was provided or retained by the appellant, making them not liable for service tax on this category. The demand related to this service was set aside.

3. Penalty Imposition under Section 78:
In terms of penalty under Section 78, the Tribunal considered the circumstances of the case. It noted the appellant's timely payment of service tax on GTA service before the show cause notice and found no grounds for imposing penalties under Section 78 or Section 80. The Tribunal waived the penalty related to service tax on GTA service, considering the appellant's reasonable cause. Consequently, the demand of service tax on Management, Maintenance, or Repair Service and associated penalties were set aside.

In conclusion, the Tribunal partially allowed the appeal, upholding the service tax and interest on GTA service while setting aside the demand of service tax on Management, Maintenance, or Repair Service, along with the penalties and interest related to it. The judgment was pronounced on 07/01/16.