2017 (3) TMI 1662 - AT - Service Tax

Commercial or industrial construction service - construction service to various clients - Held that - The building for college or school, recognized by competent authority to provide education, are to be considered as non-commercial building - Recognized educational institutions are governed by the concerned Regulatory Authority which includes the terms for fee collection also. In any case, collection of fee for providing education, per se, cannot make the educational institute as a commercial institute or the building as a commercial building - appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Whether the buildings constructed by the appellant for two customers are liable to service tax under the category of "commercial or industrial construction service"?

Analysis:
The appeal before the Appellate Tribunal CESTAT, Delhi was against an order of the Commissioner (Appeals-I), Jaipur relating to service tax liability on buildings constructed by the appellant for two customers - educational institutions. The Revenue contended that the buildings were of a commercial nature and thus subject to service tax under the category of "commercial or industrial construction service." The appellant argued that the buildings were used for educational purposes and recognized by regulatory bodies, such as AICTC and State Education Board. The Tribunal noted that the buildings were indeed for educational institutes providing education at the college/school level, which was not disputed. It emphasized that the fee structure alone cannot determine the commercial nature of a building. Recognized educational institutions, governed by regulatory authorities, should not be classified as commercial solely based on fee collection. The Tribunal disagreed with the lower authorities' reliance on fee structure to determine commerciality and held that educational buildings should be considered non-commercial. As no other issues were raised, the Tribunal set aside the impugned order and allowed the appeal.

This judgment highlights the importance of the primary use of a building in determining its tax liability under the "commercial or industrial construction service" category. The Tribunal emphasized that buildings for recognized educational institutions should not be considered commercial solely based on fee collection, as these institutions are governed by regulatory authorities and provide education services. The decision underscores the need to consider the purpose of the building and its recognition by competent authorities in assessing tax liability, rather than focusing solely on financial aspects like fee collection.