2021 (1) TMI 1213 - AT - Service Tax

Quantification of service tax - Incorrect calculation of service tax - construction of residential complex service - non-inclusion of land cost in the taxable value of the flats for calculation of service tax - abatement of 75% availed, when the eligible abatement is only 67% on the gross amount - HELD THAT - From the facts itself, it is clear that the construction services rendered by the appellants are composite in nature involving materials as well as services. This Tribunal in the case of REAL VALUE PROMOTERS PVT. LTD., CEEBROS PROPERTY DEVELOPMENT, PRIME DEVELOPERS VERSUS COMMISSIONER OF GST CENTRAL EXCISE, CHENNAI 2018 (9) TMI 1149 - CESTAT CHENNAI had analysed the issue whether the demand under construction of residential complex services is sustainable in services which are of composite in nature. After introduction of Works Contract Services, the demand can be made only under Works Contract Services in the case of construction services which are composite in nature. The decision in Real Value Promoters is squarely applicable to the facts of the case in both these appeals. The demand made under construction of residential complex service cannot therefore sustain - Appeal allowed - decided in favor of appellant.

Issues Involved:
1. Non-payment of service tax on construction of residential complex service.
2. Inclusion of land cost in the taxable value.
3. Availing incorrect abatement percentage.
4. Applicability of extended period of limitation.
5. Classification of services under Works Contract Service vs. Construction of Residential Complex Service.

Detailed Analysis:

1. Non-payment of Service Tax on Construction of Residential Complex Service:
The appellants were found to have provided services under the category of "Construction of Residential Complex Service" but did not pay the service tax correctly for the periods April 2008 to July 2008 and April 2009 to March 2010. They showed 'nil receipts' in their returns despite receiving advances and payments for construction of flats. The department issued a Show Cause Notice dated 10.10.2013, proposing to demand short-paid service tax along with interest and penalties.

2. Inclusion of Land Cost in the Taxable Value:
The appellants did not include the cost of land in the taxable value of the flats for the calculation of service tax. They argued that as per various government circulars, service tax is applicable only on the gross amounts charged by the service provider, excluding the cost of land and stamp duty. However, the department contended that the appellants should have included the land cost in the taxable value.

3. Availing Incorrect Abatement Percentage:
The appellants availed an abatement of 75% on the gross amount, whereas the eligible abatement was only 67%. The department's audit revealed this discrepancy, and the appellants contended that their abatement claim was based on the circulars and notifications in force during the relevant period.

4. Applicability of Extended Period of Limitation:
The appellants argued that the extended period of limitation should not apply as there was no willful suppression or misstatement of facts. They claimed that they had paid the service tax correctly according to the circulars existing at the time and that any non-payment was based on the circulars' guidance.

5. Classification of Services under Works Contract Service vs. Construction of Residential Complex Service:
The Tribunal in the case of Real Value Promoters Pvt. Ltd. held that composite contracts involving both supply of materials and services should be classified under Works Contract Service (WCS) rather than Construction of Residential Complex Service (CRCS). The appellants argued that their services were composite in nature, involving both materials and services, and thus the demand under CRCS could not be sustained. The Tribunal concurred with this view, citing the Supreme Court's decision in CCE Vs. Larsen & Toubro Ltd., which clarified that composite contracts should be classified under WCS and not under CRCS.

Judgment:
The Tribunal found that the construction services rendered by the appellants were composite in nature, involving materials and services. It relied on the decision in Real Value Promoters Pvt. Ltd., which established that demands under CRCS for composite contracts are not sustainable after the introduction of WCS. Consequently, the Tribunal set aside the demands made under CRCS and allowed both appeals with consequential relief as per law. The operative portion of the order was pronounced in open court.

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