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2019 (2) TMI 597 - AT - Service TaxValidity of SCN - Works contract service - the SCN had proposed to demand tax under the category of Construction of Residential Complex Service - Held that - The demand should have been made under Works Contract Service. The ratio laid down by the Tribunal in the case of M/s/ Real Value Promoters Pvt. Ltd. 2018 (9) TMI 1149 - CESTAT CHENNAI , would apply in full force where it was held that The services provided by the appellant in respect of the projects executed by them for the period prior to 1.6.2007 being in the nature of composite works contract cannot be brought within the fold of commercial or industrial construction service or construction of complex service - For the period after 1.6.2007, service tax liability under category of commercial or industrial construction service‟ under Section 65(105)(zzzh) ibid, Construction of Complex Service‟ under Section 65(105)(zzzq) will continue to be attracted only if the activities are in the nature of services‟ simpliciter. Appeal allowed - decided in favor of appellant.
Issues:
1. Classification of services under 'Construction of Residential Complex Service' or 'Works Contract Service' 2. Applicability of case laws in determining tax liability for construction activities Issue 1: Classification of services under 'Construction of Residential Complex Service' or 'Works Contract Service' The case involved a dispute regarding the classification of services provided by the appellants engaged in the construction and sale of residential flats. The Show Cause Notice proposed a demand for service tax under the category of 'Construction of Residential Complex Service' for the period from July 2007 to March 2010. The Original Authority confirmed the tax liability and imposed penalties under various provisions of the Finance Act, 1994. In appeal, the Commissioner (Appeals) upheld the Order passed by the Original Authority. During the hearing, the appellant argued that the demand should have been made under Works Contract Service based on a precedent case. The Tribunal examined the Show Cause Notice and held that the demand was proposed under 'Construction of Residential Complex Service' as defined in the Act. The Tribunal agreed with the appellant's argument that the demand should have been made under Works Contract Service, thus setting aside the impugned Order. Issue 2: Applicability of case laws in determining tax liability for construction activities The appellant relied on the case of M/s. Real Value Promoters Pvt. Ltd. to support their argument that the demand should have been made under Works Contract Service. The Tribunal found the precedent case applicable to the facts of the present case. On the other hand, the Revenue relied on various case laws such as M/s. G.D. Builders, M/s. BCC Developers and Promoters Pvt. Ltd., and M/s. National Building Construction Corporation Ltd. to support their position. However, the Tribunal noted that these cases did not consider the decision of the Hon'ble Apex Court in the case of M/s. Larsen and Toubro Ltd., which held that composite contracts cannot be vivisected. Therefore, the Tribunal found that the case laws relied upon by the Revenue were not applicable to the issue under consideration. Consequently, the impugned Order was set aside, and the appeal was allowed with consequential benefits as per law.
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