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2018 (12) TMI 1039 - AT - Service TaxRenting of immovable property - Tahbazari fee - liability of service tax - Held that - Apparently and admittedly the authority is existing under the Municipal Act, 1960, as came into effect in furtherance of Article 285 of Constitution of India. Section 128 of the said Municipal Act clarifies that the amount received by the Nagar Nigam from the traders permitting them to carry out their activities within the municipal limits shall be collected in the form of the tax. The provision is sufficient to hold that the activity is intended to be a sovereign Act of the Nagar Nigam. The authority below has wrongly considered it as a service being rendered by the appellant to the said traders. In such scenario, emphasis on the definition of renting of immovable property under the Finance Act has no more significance - appeal allowed - decided in favor of appellant.
Issues: Taxability of services provided by Municipal Corporation under "renting of immovable property" for the period 2009-2014; Interpretation of relevant provisions of Finance Act, 1944; Applicability of circular dated 13th April 2016 on levy of tax by Government or local authorities.
Analysis: The case involved a Municipal Corporation in the State of Uttrakhand being alleged by the Department of providing taxable services of "renting of immovable property" under the Finance Act, 1944. The Department claimed that the Corporation received Tahbazari fee, which they considered as rent, for the period from 2009-10 to 2014-15, leading to a demand for service tax amounting to ?12,17,401 along with interest and penalty. The issue was whether the Corporation's activity fell under the taxable service category as per the Act. The appellant, represented by a Chartered Accountant, argued that the Corporation, being a statutory body, was merely discharging its duty of providing spaces and not collecting rent but a fee. They contended that the Department wrongly categorized the amount as a service, seeking to set aside the demand and allow the appeal. On the other hand, the Department, represented by the Ld. DR, emphasized the definition of "renting of immovable property service" under the Finance Act, stating that any amount received for letting, leasing, or licensing of immovable property is taxable. Upon hearing both parties and examining the records, the Tribunal observed that the amount in question was collected by the Nagar Nigam Haldwani, which operated under the Municipal Act, 1960, in line with Article 285 of the Constitution of India. Section 128 of the Municipal Act clarified that amounts received by the Nagar Nigam from traders for activities within municipal limits were collected as tax, indicating a sovereign act of the Nagar Nigam. The Tribunal concluded that the lower authority erred in considering the Corporation's activity as a service to traders, making the definition of "renting of immovable property" under the Finance Act irrelevant. Furthermore, the Tribunal referenced a circular dated 13th April 2016 from the Government of India, Ministry of Finance, clarifying the levy of tax on services provided by Government or local authorities to business entities. The circular stated that taxes/cesses or duties were not leviable, providing a beneficial interpretation for the appellant. Despite the circular being issued post the impugned period, the Tribunal deemed it applicable retrospectively due to its clarificatory nature and benefit to the appellant. Consequently, the Tribunal set aside the order under challenge and allowed the appeal in favor of the Municipal Corporation.
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