2016 (2) TMI 1170 - AT - Service Tax

Commercial or Industrial Construction Services - Construction of Residential Complex Services - The grievance of the appellant is that they are developers and the definition of Commercial or Industrial Construction Services was amended w.e.f. 01.07.2010, by including the deeming provision in the definition so as to cover the developers also - Held that - The only question of fact required to be examined is as to whether the appellant was a developer during the relevant period, which is prior to 01.07.2010, or not. This factual position can be arrived at after examining the various contracts and the documentary evidences. Such an exercise can be done at the original adjudication level, for which purpose we set aside the impugned order and once again remand it to the Commissioner for de novo decision - appeal allowed by way of remand.

Summary

Issues:
Service tax liability of a developer prior to 31.03.2009 under the categories of Commercial or Industrial Construction Services and Construction of Residential Complex Services.

Analysis:
The appellant, a developer, contested the service tax demands imposed on them for the period before 31.03.2009, claiming they were wrongly registered under Commercial or Industrial Construction Services. Despite asserting they were developers not liable for service tax, demands were confirmed. The impugned order upheld the demands based on undervaluation issues under the mentioned service categories.

The appellant argued that as a developer, they were not liable to pay service tax before 01.07.2010 due to an amendment in the definition of Commercial or Industrial Construction Services. They cited relevant tribunal decisions supporting their stance. The Commissioner, in the impugned order, acknowledged the appellant as a developer but still confirmed the demands under Commercial or Industrial Construction Services from 01.07.2010.

The Tribunal found the legal issue straightforward: developers were not liable for service tax before 01.07.2010. The appellant's status as a developer during the relevant period needed verification through contract and documentary evidence examination. The Tribunal set aside the impugned order, remanding the case for a fresh decision considering their observations, relevant tribunal decisions, and court precedents. The appeal was allowed for remand, leaving other pleas open for the Commissioner's fresh determination.