2016 (12) TMI 597 - AT - Service Tax

Levy of tax - works contract - whether the roads and park are a part of a residential complex or not? - Held that - This issue is settled by the various decisions of the Tribunal, High Court as also by the Apex Court. Accordingly, considering the subsequent rulings of the Hon ble Supreme Court, particularly in the case of L & T and others Vs. CCE 2015 (8) TMI 749 - SUPREME COURT . We set aside the impugned order and remand the matter to the adjudicating authority for de novo adjudication, the appellant is also directed to appear before the adjudicating authority within 45 days of receipt of this order and seek opportunity of hearing - appeal allowed by way of remand.

Summary

Issues involved:
Whether the roads and park are part of a residential complex for the purpose of levying service tax.

Detailed Analysis:
The appellant, a service tax registrant, entered into a work contract for constructing a residential complex but did not pay service tax on the amount received for constructing park, road, and swimming pool, considering them as amenities for the general public not chargeable to service tax. The department issued a show-cause notice and demanded service tax of ?30,62,770 under Section 73 of the Finance Act, 1994. The appellant challenged this demand in appeal.

The appellant argued that the facilities like roads and parks were not part of the residential complex and should not be subject to service tax. The appellant presented various grounds, including circulars, statements, invoices, and work orders, to support their claim that these amenities were not part of the residential complex. The appellant contended that there was no categorical finding in the impugned order that the roads and park were part of the residential complex, urging for the appeal to be allowed.

The Revenue supported the impugned order, which confirmed the demand for service tax. However, the Tribunal, after considering the arguments, found that the crucial issue was whether the roads and park were indeed part of a residential complex. Referring to previous decisions, including a Supreme Court ruling, the Tribunal set aside the impugned order and remanded the matter to the adjudicating authority for fresh adjudication. The appellant was directed to appear before the adjudicating authority within 45 days for a hearing.

In conclusion, the appeal was allowed by way of remand, and the stay petition was disposed of. The Tribunal's decision was based on the determination that the crucial issue of whether the roads and park were part of a residential complex needed further examination by the adjudicating authority in light of relevant legal precedents.