2018 (2) TMI 1247 - AT - Service Tax

Renting of immovable property Service - Nakki Lake which was let out for boating and balloon rides etc., skating rink, let out for skating and certain shops let out for commercial purposes - Held that - Regarding the consideration received by the appellant from the contractors for using the Nakki Lake and the skating rink area, we note that these two will fall under the excluded category of land used for entertainment . Admittedly, both these properties in the form of land were used for admitting public for general amusement - in the absence of any statutory definition. Boat/balloon ride on the lake, skating in the skating rink will fall under the overall ambit of entertainment - tax liability do not sustain. Rental income from commercial shops - Held that - based on the facts submitted by the appellant and also considering the status of the appellant as a local Government Authority, we hold that no malafide can be attributed to them for non-payment of tax in time - while the appellant is liable to pay service tax on letting out the commercial properties like shops etc., the same shall be restricted to normal period of demand with no penalties. Appeal allowed in part.

Summary

Issues:
1. Tax liability of appellant under renting of immovable property for various assets.
2. Exclusion of Nakki Lake and skating rink from tax liability.
3. Scope of the term "entertainment" in relation to tax liability.
4. Applicability of extended period for tax liability on shops let out.
5. Liability of appellant for service tax on rental income from commercial shops.
6. Consideration of malafide intentions in non-payment of tax.

Analysis:
1. The appeal challenged the order of the Commissioner of Central Excise regarding the tax liability of the appellant, a municipal body, for renting out various immovable assets. The disputed period was 2007-2008 to 2011-2012, with a confirmed service tax liability of ?88,87,097/- and penalties imposed under Sections 76, 77, and 78 of the Finance Act, 1994.

2. The appellant contended that Nakki Lake and the skating rink, used for activities like boating, balloon rides, and skating, should be excluded from tax liability under the category of renting of immovable property. They argued that these activities fall under the excluded category of land used for "entertainment," citing relevant case laws and emphasizing the broader interpretation of the term "entertainment" in the absence of a statutory definition.

3. The Tribunal agreed with the appellant's interpretation, holding that the activities conducted at Nakki Lake and the skating rink indeed fell under the scope of "entertainment," warranting exclusion from tax liability. The Tribunal emphasized that in the absence of a specific definition, a wider understanding of the term "entertainment" should be applied, encompassing activities like boat and balloon rides and skating.

4. Regarding the tax liability on shops let out for commercial purposes, the appellant accepted the liability but contested the invocation of the extended period for demand, citing timely intimation to the Department. The Tribunal acknowledged the liability on rental income from commercial shops but considered the appellant's status as a local Government Authority and absence of malafide intentions, leading to a decision to restrict the tax liability to the normal period without imposing penalties.

5. In conclusion, the Tribunal partly allowed the appeal, ruling in favor of the appellant by excluding Nakki Lake and the skating rink from tax liability under renting of immovable property and limiting the tax liability on rental income from commercial shops to the normal period without penalties, considering the appellant's circumstances and intentions in non-payment of tax.