2020 (1) TMI 676 - AT - Service Tax

Liability of sub-contractor to pay tax - construction of residential complex - Department was of the view that the Appellant as sub-contractor were liable to pay service tax on the value of services provided to main contractor, including Manglam - period 2011-12 to 2012-13 - HELD THAT - As far as the payment of service tax by the sub-contractor is concerned, the same is settled by the order of this Tribunal in case of COMMISSIONER OF SERVICE TAX VERSUS MELANGE DEVELOPERS PVT. LTD. 2019 (6) TMI 518 - CESTAT NEW DELHI therefore, the Appellant is required to pay service tax on the work undertaken by him as sub-contractor. The Appellant has contended that for relevant period they would be entitled for exemption of from payment of service tax under N/N. 06/2005 as amended and also for the construction activities undertaken services provided to the educational institute which is exempt under service tax law - It is also submitted that the Appellant has also provided certain materials, while providing service to the service recipient which is required to be given adjustment in terms of N/N. 12/2003-ST dated 20.06.2003, which has not been considered by the Commissioner (Appeals) whiling remanding the matter back to Adjudicating Authority. Appeal allowed by way of remand.

Summary

Issues:
Appeal against order remanding for de novo consideration for exemption under threshold limit vis-a-vis profit and loss account for service tax liability.

Analysis:
The appellant, a sub-contractor providing services to a main contractor and others, was alleged to have not paid service tax resulting from not charging the recipient of service, failure to obtain service tax registration, and non-filing of ST-3 returns for the relevant period. The demand was confirmed after due process of law.

The appellant argued that they did not exceed the threshold limit for service tax payment during the period in question and that services provided to educational institutes and affordable housing projects, exempt from service tax, should be deducted from the taxable service amount. They contended that the demand was based on income in Form-26AS without considering the details of income shown before the income tax authority.

The authorized representative for the Revenue stated that the impugned order was a remand order, allowing the appellant to present all facts and figures regarding the service tax liability before the lower Adjudicating Authority.

The Tribunal noted that the appellant was required to pay service tax as settled in a previous case. However, the appellant's claims for exemption under Notification No. 06/2005 and for adjustments under Notification No. 12/2003 were not adequately considered by the Commissioner (Appeals) while remanding the matter. The Tribunal set aside the impugned order and allowed the appeal by remanding it to the original adjudicating authority for a detailed finding on each ground raised by the appellant after granting them a hearing.

In conclusion, the appeal was allowed by way of remand to the original adjudicating authority for further consideration and modifications as discussed during the proceedings.