2019 (5) TMI 77 - HC - Service Tax

Nature of activity - service or not - laying or relaying of roads for PWD and other local corporations based on the contracts awarded by the Government organizations or undertakings - HELD THAT - No service tax shall be levied or collected in respect of management, maintenance or repair of roads, during the period from 16.06.2005 to 26.07.2009 (both days inclusive). Since the services of the petitioner would not fall under the definition of Section 65(105)(zzza) of the Finance Act, 1994, he is exempted from the service tax payable during the period from 16.06.2005 to 30.09.2008 for which service tax has been claimed from him. Petition allowed.

Summary

Issues:
Challenge to show cause notice regarding service tax liability for road construction works contract.

Analysis:
1. Nature of Contract: The petitioner, a road contractor, engaged in laying or relaying roads for government organizations, argued that the contracts awarded to him fall under the definition of 'works contract' as per the relevant tax acts. The petitioner contended that sales tax had been regularly assessed on these contracts.

2. Tax Deductions: The petitioner highlighted that tax deductions at source were made by the contractee as per the provisions of the tax acts. The petitioner emphasized that the transfer of property in goods was involved in the execution of the contract, making it a 'works contract' subject to sales tax.

3. Show Cause Notice: The petitioner challenged the show cause notice issued by the respondent, alleging that the services provided were liable for service tax under the Finance Act, 1994. The notice accused the petitioner of willful suppression of facts to evade service tax payment.

4. Legal Arguments: The petitioner contended that the works executed were excluded from service tax liability under the Finance Act, 1994, and should not be classified as maintenance or repair services. Specific provisions of the tax acts were cited to support the petitioner's argument.

5. Counter Affidavit: The respondent argued that the services rendered by the petitioner fell under maintenance or repair services, making them liable for service tax under the Finance Act, 1994. The respondent maintained that the petitioner had not provided necessary details or paid the applicable service tax.

6. Precedent and Exemption: The petitioner cited previous court orders where similar matters were dealt with, leading to the allowance of the writ petitions based on specific provisions exempting service tax for management, maintenance, or repair of roads during a certain period.

7. Judgment: The court referred to the exemption provision in the Finance Act, 1994, which stated that no service tax would be levied for the management, maintenance, or repair of roads during a specified period. Based on this provision, the court ruled in favor of the petitioner, quashing the show cause notice and exempting the petitioner from the service tax claimed for the relevant period.