2017 (4) TMI 227 - AT - Service Tax

Construction of Complex Services - demand - The appellant is contended that the flats constructed by the appellants as works contract and is liable to pay service tax @ 2% amount received from Haryana Housing Board. It is a contention of the appellant is that for period prior to 01.06.2006-2007, the appellant is not liable to pay service tax - Held that - there is composite contract which is in nature of work contract was awarded to the appellant on 13.06.2006, therefore, for the period prior to 01.06.2007, the service tax cannot be levied on the amount received by the appellant prior to 01.06.2007 - for the period post 01.06.2007, the appellant is liable to pay service tax. As per N/N. 32/2007 ST dt. 22.05.2007, the appellant is at the liberty to pay service tax @ 2% of the total receipt or to pay service tax as per work contract, the appellant is opted to pay @2% at the amount received - Further, as appellant has not received any amount towards service tax from Haryana Housing Board; therefore, the receipt amount is to be taken as cum service tax and benefit of cum service tax is to be given to the appellant. The matter is remanded back to the Adjudicating Authority after setting aside the impugned order to re-quantify the demand as discussed above after deciding the issue of extended period of limitation - appeal allowed by way of remand.

Summary

Issues:
Appeal against confirmation of Service Tax demand for construction of Complex Services for a specific period.

Analysis:
The appellant contended that the construction of flats was a works contract and liable for service tax at 2%. They argued that based on a Supreme Court decision, they were not liable for service tax before a certain date. The appellant claimed entitlement to cum tax benefit as they did not collect any tax from the Haryana Housing Board.

The appellant's counsel highlighted that the Haryana Housing Board had reduced the bid amount by the service tax element, indicating they were not liable to pay service tax. Internal correspondence supported this stance. They argued for non-imposition of penalties due to a bona fide mistake.

The Tribunal noted that an earlier order confirmed service tax demand and penalties, which was upheld but remanded by the High Court in light of a Supreme Court decision. The Tribunal held that service tax could not be levied before a specific date and that the appellant was liable to pay service tax post that date as per a notification.

As the appellant did not receive any service tax amount from the Housing Board, the receipts were considered as cum service tax. The Tribunal directed the Adjudicating Authority to re-quantify the demand, considering the issue of limitation and the benefit of a specific section of the Finance Act.

In conclusion, the Tribunal ruled that no service tax demand was sustainable for amounts received before a certain date, provided cum service tax benefit to the appellant, and specified the applicable service tax rates for different periods. The Adjudicating Authority was tasked with deciding on the issue of limitation and the benefit of a specific section of the Act.