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2020 (3) TMI 578 - AT - Service TaxConstruction of complexes services - work undertaken by the appellant for the MP Development Board for construction of duplex Riviera Towne (Phase I), Bhopal - GTA services - Demand of service tax - HELD THAT - The definition of a residential complex leaves no manner of doubt that it would be a complex comprising of a building or buildings, having more than twelve residential units. In other words a complex may have a building having more than twelve residential units or a complex may have more than one building each having more than twelve residential units. Independent buildings having twelve or less than twelve residential units would not be covered by the definition of residential complex - In the present case, the appellant had constructed independent buildings having one residential unit only. Thus, even if the appellant had constructed more than 12 independent buildings, the nature of activity would not be construction of complex and, therefore, the service tax could be levied. The appellant has not constructed a residential complex having more than 12 residential units. It has constructed independent buildings having one residential unit - The decisions of the Tribunal in MACRO MARVEL PROJECTS LTD. VERSUS COMMR. OF SERVICE TAX, CHENNAI 2008 (9) TMI 80 - CESTAT, CHENNAI and AS SIKARWAR VERSUS COMMISSIONER OF CENTRAL EXCISE, INDORE 2012 (11) TMI 1000 - CESTAT, NEW DELHI clearly apply to the facts of the present case, where it was held that service tax can be demanded under section 65(105)(zzzh) only if the building concerned has more than 12 residential units in the building and such levy will not apply in cases where in one compound has many buildings, each having not more than 12 residential units. The definition of construction of complex and a residential complex continue to remain the same after 1 July, 2012 and, therefore, service tax liability could not have been fastened even after 1 July, 2012 under construction of complex - The levy of service tax on the appellant under construction of complex service is, therefore, not justified and, cannot be sustained. GTA services - HELD THAT - It is seen that an amount of ₹ 1,12,847/- was confirmed for the period 1 October, 2007 upto 31 March, 2012 and an amount of ₹ 1,142/- was confirmed for the period from 1 April, 2013 upto 31 March, 2014. The Principal Commissioner has recorded a finding that the appellant had not submitted any documentary evidence in support of the contention that transportation of goods was through local cartage and no consignment notes were issued. The learned Chartered Accountant for the appellant has referred to receipts to substantiate that it was a case of local cartage and not a case of transportation by GTA. Though it is a fact that the appellant had not produced these receipts before the Principal Commissioner in response to the show cause notice but the meager amount paid by the appellant for this activity during this period persuades us to remand the matter to the Principal Commissioner for examining this aspect after providing an opportunity to the appellant to submit the relevant documents within six weeks from the date of order. The order to the extent it confirms the demand of service tax under construction of complex services is set aside - However, the matter relating to confirmation of demand of service tax under GTA services is remanded to the Principal Commissioner for a fresh determination - Appeal allowed in part and part matter on remand.
Issues Involved:
1. Demand of service tax under "construction of complex" services. 2. Demand of service tax under "goods and transport agency" (GTA) services. 3. Imposition of interest and penalty. 4. Invocation of the extended period of limitation. Detailed Analysis: 1. Demand of Service Tax under "Construction of Complex" Services: The appellant, a partnership firm engaged in civil construction work, challenged the demand of service tax for the period from 1 October, 2007 to 31 March, 2014. The Principal Commissioner confirmed the demand based on the classification of the appellant's activities under "construction of complex" services as defined under section 65(30a) of the Finance Act, 1994. The appellant contended that the work executed did not qualify as a "residential complex" since the buildings constructed did not have more than 12 residential units, which is a prerequisite under section 65(91a) of the Finance Act. The Tribunal agreed with the appellant, citing previous judgments, including Macro Marvel Projects Ltd. v/s Commissioner of Service Tax, Chennai and A.S. Sikarwar vs. Commissioner of Central Excise, Indore, which clarified that independent buildings with less than 12 residential units do not fall under the definition of "residential complex." Consequently, the demand for service tax under "construction of complex" services was set aside. 2. Demand of Service Tax under "Goods and Transport Agency" (GTA) Services: The Principal Commissioner confirmed the demand for GTA services, citing the appellant's failure to provide documentary evidence to support their claim that the transportation was local cartage and not through a GTA. The Tribunal noted that although the appellant did not submit these documents during the initial proceedings, the small amounts involved warranted a re-examination. Therefore, the matter was remanded to the Principal Commissioner for a fresh determination, allowing the appellant to submit relevant documents within six weeks to substantiate their claim. 3. Imposition of Interest and Penalty: The appellant contested the imposition of interest and penalties. However, this issue was not separately addressed in the Tribunal's final order. Given the Tribunal's decision to set aside the demand for "construction of complex" services and remand the GTA service tax issue, the imposition of interest and penalties would logically be reconsidered in light of the final determination on these tax liabilities. 4. Invocation of the Extended Period of Limitation: The appellant argued against the invocation of the extended period of limitation. The Tribunal did not explicitly address this issue in the final judgment. However, the setting aside of the primary tax demand under "construction of complex" services and the remand for further examination of the GTA services implicitly suggests that the extended period of limitation may not be applicable, pending the outcome of the remanded issues. Conclusion: The Tribunal's judgment primarily set aside the demand for service tax under "construction of complex" services due to the misclassification of the appellant's activities. It remanded the issue of service tax under GTA services for further examination, allowing the appellant to provide additional evidence. The final determination on interest, penalties, and the extended period of limitation would depend on the outcomes of these primary issues.
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