2017 (12) TMI 1379 - AT - Service Tax

Service tax liability - construction of residential complex service - commercial and industrial construction service - Closure for the amount already paid in terms of Section 73 (3) of the FA, 1994 - Held that - the nature and use of building being for school education managed by school recognized by the Government, the building is excluded from the tax liability under commercial or industrial construction service - the building is primarily used for education and not for commerce or industry. Accordingly, tax liability set aside. Invocation of Section 73 (3) - Held that - Section 73 (3) speaks about closure of case without further proceedings. In the present case, proceeding was continued, resulting in the impugned order. To that extent closure in adjudication proceeding is not contemplated in the said Section - also, there is no merit in the appeal by the Revenue for imposition of penalty under Section 76 and 78. Appeal dismissed - decided against Revenue.

Summary

Issues:
1. Service Tax liability on construction activities
2. Imposition of penalties under Section 76 and 78

Analysis:

Issue 1: Service Tax liability on construction activities
The case involved a dispute over the Service Tax liability on construction activities conducted by the respondent. The Revenue contested the original authority's decision regarding the tax liability of a school building constructed by the respondent. The Revenue argued that since the school was earning a profit, the building should not be excluded from tax liability. However, the Tribunal upheld the original authority's decision, emphasizing that the primary use of the building for educational purposes exempts it from tax liability under commercial or industrial construction services. The Tribunal clarified that the relevant factor for tax liability is the nature and use of the building, not the profit earned by the owner.

Issue 2: Imposition of penalties under Section 76 and 78
The Revenue also challenged the original authority's decision not to impose penalties under Section 76 and 78. The original authority justified the non-imposition of penalties by noting that the entire Service Tax amount was paid before the issuance of the show cause notice, as per Section 73(3) of the Act. The Tribunal agreed with the original authority's reasoning, stating that since the tax amount was paid before the notice, the imposition of penalties was not warranted. Although the Tribunal acknowledged that the invocation of Section 73(3) might not be directly applicable in this case, it found no grounds to reverse the original authority's decision. The Tribunal suggested that invoking Section 80 could have been more appropriate, but ultimately upheld the original authority's decision on penalty imposition.

In conclusion, the Tribunal dismissed the Revenue's appeal, finding no merit in challenging the original authority's decisions on both the Service Tax liability of the school building and the imposition of penalties under Section 76 and 78. The Tribunal emphasized the importance of the building's use for educational purposes in determining tax liability and upheld the original authority's rationale for not imposing penalties due to the early payment of the Service Tax amount.