2019 (7) TMI 8 - AT - Service Tax

Renting of immovable property service - constitutional levy of service tax - services provided by local body ( Municipality) created under the constitutional provisions - absence of profit motive - difference between the Licence fee and the income from commercial activity - HELD THAT - The argument of the AR for Revenue, with regard to renting of immovable property is acceptable. We find that the constitutional validity of the same is upheld by Delhi High Court in the case of HOME SOLUTIONS RETAILS (INDIA) LTD. VERSUS UNION OF INDIA ORS 2011 (9) TMI 46 - DELHI HIGH COURT - Madras High Court has upheld the applicability of the same to Municipalities in the case of R. NAMBI VERSUS TENKASI MUNICIPALITY 2014 (9) TMI 968 - MADRAS HIGH COURT - There is dispute regarding the quantification of duty and the nature of renting of immovable property and leasing out/sale of space for advertising as to whether are not for the purposes of furtherance of business interest or otherwise. Principles of natural justice - HELD THAT - While the appellants contend that they have not been given enough opportunity to explain, the department contends that no proper bifurcation was given. The appellants submitted that vide letter, dated 24/7/12, they have requested that four weeks time to file their submissions. Oder was passed on 30/8/2012 before they submitted their records - It is not forthcoming from the OIO whether the appellants were put to sufficient notice before finalisation. This is certainly against the principles of natural justice. It is quite possible that contradictory and different figures are submitted at different times - Considering these circumstances and facts of the case, we find that the matter requires going back to the original authority for reconsideration of the issue afresh in the light of submissions of the appellants, in the interest of justice. Appeal allowed by way of remand.

Issues Involved:
1. Taxability of services rendered by M/s BBMP, including renting of immovable property and selling space on hoardings for advertisement.
2. Constitutional validity of service tax on renting of immovable property.
3. Adequacy of opportunity provided to M/s BBMP to present their case.
4. Penalty imposition and its justification.

Detailed Analysis:

1. Taxability of Services Rendered by M/s BBMP:
M/s BBMP engaged in activities such as giving hoardings to M/s Vantage Advertising for displaying social awareness messages and advertisements, and letting out commercial buildings. The Revenue contended these activities rendered taxable services. Show cause notices were issued and confirmed by the Commissioner, leading to appeals by M/s BBMP.

The Appellant argued that as a local body under the 74th Constitutional amendment, their activities were not commercial and had no profit motive. They claimed the collection of license fees for advertisements was for urban infrastructure development and not taxable under Section 65 (105). Furthermore, they argued that rental income from properties like Garuda Mall should be considered differently, with service tax payable only on 50% of the income, which was not considered by the authority.

The Respondent countered that M/s BBMP collected significant amounts as license fees for advertisement space and had not collected service tax initially but did so later. The collected amounts were substantial, indicating the provision of taxable services under Section 65(105) (zzzm).

2. Constitutional Validity of Service Tax on Renting of Immovable Property:
The Appellant contended that service tax on renting of immovable property was unconstitutional, arguing it was a state subject under Entry 49 of List II. However, the Respondent cited various High Court rulings, including Home Solutions Retails (India) Ltd. Vs Union of India, which upheld the validity of service tax on such activities, emphasizing that the tax was on the activity of renting for commercial purposes, not on the property itself.

3. Adequacy of Opportunity Provided to M/s BBMP:
M/s BBMP argued they were not given sufficient opportunity to present their case. They requested additional time to submit documents, which was denied, leading to a hurried order. The Appellant highlighted that different officers represented the case at various times, leading to inconsistent information being presented.

The Tribunal acknowledged this procedural lapse, noting the principles of natural justice were not followed. The case required reconsideration, allowing M/s BBMP to submit all necessary data and arguments.

4. Penalty Imposition and Its Justification:
The Appellant argued there was confusion regarding service tax applicability, citing a Delhi High Court judgment and claiming they acted in good faith. They referenced a CESTAT - NEW DELHI judgment in Jingal Vegetable Products vs CCE, which held that penalties should not apply when there was genuine doubt about tax liability.

The Tribunal found merit in the Appellant’s argument regarding procedural fairness and the need for a thorough re-evaluation of the facts and figures.

Conclusion:
The Tribunal accepted the Respondent's argument on the constitutional validity of service tax on renting of immovable property. However, it found procedural lapses in providing M/s BBMP adequate opportunity to present their case. The Tribunal remanded the matter back to the adjudicating authority for reconsideration, instructing that all requisite data be submitted within six weeks and a new order be passed within eight weeks thereafter, ensuring due opportunity for M/s BBMP to be heard. All issues were kept open for re-evaluation.

Disposition:
All four appeals (ST/27959/2013, ST/28153/2013, ST/28154/2013, and ST/28166/2013) were remanded to the adjudicating authority for fresh consideration.

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