2018 (8) TMI 359 - AT - Service Tax

Maintainability of appeal - Works contract services - whether the construction of residential flats under Manyawar Shri Kanshi Ramji Shehari Garib Awas Yojna would be liable to service tax under the category of Works Contract Services or not? - Held that - Revenue has not been able to give any details of the appeal filed before the Hon ble High Court. Even, the fact as to whether the same stands admitted by the High Court or not, has not been placed. Also, the issue involved is the taxability of the services and applicability of exemption notification and as such the appeal was, in any case required to be filed before the Hon ble Supreme Court and not before the Hon ble High Court. Appeal dismissed - decided against Revenue.

Summary

Issues:
1. Whether the construction of residential flats under a specific housing scheme is liable to service tax under "Works Contract Services."

Analysis:
The Appellate Tribunal CESTAT ALLAHABAD rejected the Stay Petitions filed by the Revenue as the impugned orders of Commissioner (Appeals) were non-executable. The Tribunal noted that the issue in both appeals was identical and already covered by its decisions, so it proceeded to decide the appeals itself. The main issue in both appeals was whether the construction of residential flats under a particular housing scheme would attract service tax under "Works Contract Services." The Commissioner (Appeals) had ruled in favor of the respondents, citing various decisions, including a specific case involving Ganesh Yadav. The Commissioner held that the construction under the housing scheme was not taxable as a works contract service. The Revenue's objection was that the Tribunal's decision in the Ganesh Yadav case was not accepted and an appeal was filed before the Allahabad High Court. However, the Revenue failed to provide details of the appeal or whether it was admitted by the High Court. The Tribunal observed that the issue of taxability and exemption notification required an appeal to be filed before the Supreme Court, not the High Court. Since the Tribunal's decision in the Ganesh Yadav case was valid, the impugned orders of the Commissioner (Appeals) were upheld, and both appeals by the Revenue were rejected, with the Stay Petitions also disposed of.