2017 (5) TMI 673 - AT - Service Tax

Charges collected by the appellant from the allottees of land - taxability - substantial part of the demand against the appellant in various proceedings, relate to their service tax liability on lump-sum premium amount, received by them from the allottees on allotment of land on long term basis - Held that - In view of the introduction of new Section 104 in the Finance Act, 1994 the appellant s liability on such consideration no longer exists. The one time payment received for grant of long term lease of 30 years or more of industrial plot, is not liable to service tax for all the periods covered in the present proceedings. However, we hold that the appellants are liable to pay service tax in respect of such one time amounts received in respect of lease granted for less than 30 years - the appellants are liable to service tax on the premium received on leasing of land for the periods of less than 30 years. Renting of immovable property service - Held that - Regarding tax liability of the appellant on the economic rent received by them from 01/07/2010, we find that on the similar matter, this Tribunal has examined this very same issue in the case of Greater Noida Industrial Development Authority 2015 (4) TMI 661 - ALLAHABAD HIGH COURT and upheld the service tax liability on such charges. The said decision of the Tribunal has been upheld by the Hon ble Allahabad High Court as noted earlier in this order. As such, we hold that the appellants are liable for service tax on the lease rent/economic rent received periodically, on the lands allotted for industrial purpose for the period post 01/07/2010. Management, maintenance and repair services - Held that - repair and maintenance of roads is exempted from payment of service tax in terms of Section 97 of the Finance Act, 1994. The said exemption has been made applicable from 16/06/2005 upto 26/07/2009. Thereafter exemption Notification 24/2009-ST dated 27/07/2009 and Notification No. 54/2010-ST dated 21/12/2010 are applicable - any charges are collected by the appellants towards repair and maintenance of roads, the same shall not be liable to service tax under the category of management, maintenance and repair service. Charges collected from allottees with reference to provision of various services other than management, maintenance of roads - Held that - no exemption is available. The claim of the appellant that they have undertaken the said maintenance as a governmental authority and, hence, not liable to tax, is not tenable - appellant are liable service tax for the period prior to 30/01/2004 as no exemption is available to them. Transfer charges as per Rule 18 of RIICO Rules - The Revenue demanded service tax on such charges either under real estate agent service or under renting of immovable property service - Held that - the transfer of allotment is enabling the transferee to obtain the land on lease and it is an integral part of lease arrangement. As such, the said consideration is to be considered as a taxable value received for rendering taxable service of renting of immovable property. Wherever demand of service tax on this income is with reference to this tax entry, the appellant is liable to pay. Extended period of limitation - Held that - the appellants are a Government company. The issues dealt with above are involving interpretation of legal provisions. Some differing views are already on record. As a Government agency it is not incorrect to assume that the appellant did not have any malafide intend to mis-represent or suppress facts from the tax authorities in order to evade the tax - extended period not invoked - demand limited to normal period. Penalties - Held that - the penalties imposed on the appellant are also liable to be set aside, as there are no malafide intention. Subject to production of evidence that the appellants have charged gross amount which is inclusive of service tax and the arrangement with the service recipient/the documents support such assertion, the appellant should be allowed to calculate the tax liability in terms of the said provision.

Issues Involved:
1. Service tax liability on various charges collected by the appellant from the allottees of land.
2. Condonation of delay in filing the appeal.
3. Classification of charges collected by the appellant.
4. Applicability of service tax on different charges.
5. Extended period of limitation and penalties.

Issue-wise Detailed Analysis:

1. Service Tax Liability on Various Charges:
The appellants, a government-incorporated company, were engaged in the development of industrial areas and collected various charges from allottees of land, including development charges, economic rent, and other miscellaneous charges. The Revenue issued show cause notices demanding service tax on these charges, which were upheld by the Original Authority.

2. Condonation of Delay:
The Tribunal condoned a 35-day delay in filing one of the appeals, satisfied with the reasons provided by the appellant.

3. Classification of Charges Collected:
The appellant argued that the development charges/premium received were akin to a sale and not subject to service tax under 'Renting of Immovable Property Service.' They cited the Greater Noida Industrial Development Authority case, where the Tribunal held that 'premium or salami' paid for the transfer of interest in property is not taxable under renting of immovable property service.

4. Applicability of Service Tax on Different Charges:
- Lump-sum Premium: The Tribunal noted that the introduction of Section 104 in the Finance Act, 1994, exempted one-time upfront payments for long-term leases (30 years or more) from service tax. However, leases for less than 30 years were still taxable.
- Economic Rent: The Tribunal upheld the service tax liability on economic rent received periodically from 01/07/2010, based on the Greater Noida Industrial Development Authority case.
- Retention, Restoration, and Unauthorized Construction Charges: These were considered as considerations for allowing continued use of the leased plot and were taxable under renting of immovable property service.
- Service Charges/Fire Charges: Charges related to maintenance of roads were exempted, but other maintenance services were taxable. The appellant's claim of being a governmental authority was rejected for the period prior to 30/01/2014. Post 30/01/2014, they were eligible for exemption under Notification 25/2012-ST.
- Transfer Charges: These were not taxable under 'Real Estate Agent Service' but were taxable under renting of immovable property service as they facilitated the lease arrangement.

5. Extended Period of Limitation and Penalties:
The Tribunal found no justification for invoking the extended period of limitation or imposing penalties, as the appellant, being a government entity, did not have any malafide intent to evade tax. The issues involved were of legal interpretation, and the appellant had a bonafide belief in their non-liability.

Conclusion:
- The appellants are liable to service tax on leasing activities from 01/07/2010, except for lump-sum payments for leases of 30 years or more.
- Service tax is applicable on retention, restoration, unauthorized construction charges, and transfer charges under renting of immovable property services.
- Maintenance charges, other than those for road maintenance, are taxable.
- Demands invoking the extended period are restricted to the normal period, and penalties are set aside.
- The appellant can calculate tax liability inclusive of service tax under Section 67 (2) of the Finance Act, 1994, subject to documentary evidence.

Order:
The appeals are disposed of accordingly, with the Tribunal pronouncing the order in open court on 12/05/2017.

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