2020 (7) TMI 701 - AT - Service Tax

Levy of Service Tax - Construction Activities - reverse charge mechanism - it appeared to revenue that appellant were providing Construction of Residential Complex Service‟ for the period upto 30.06.2012 and same service after 01.07.2012 being covered by the provisions of Section 66 E of the Finance Act, 1994 - exemption under Sl. No.14 of N/N. 25/2012-ST dated 20.06.2012 - HELD THAT - There is no evidence on record to establish that the appellant had constructed a residential complex before 30.06.2012 or the appellant had constructed a complex with more than 2 residential units together after 01.07.2012 - Thus the appellant did not provide residential complex service prior to 01.07.2012 and appellant was eligible for exemption under Notification No.25/2012-ST dated 20.06.2012 at Serial No.14 for activity of construction undertaken by him for the period subsequent to 01.07.2012. Further, appellant was not liable to pay Service Tax under Reverse Charge Mechanism. Appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Whether the appellant was liable to pay service tax for construction activities undertaken.
2. Whether the appellant was liable to pay service tax under the reverse charge mechanism.

Analysis:

Issue 1: Liability for Service Tax on Construction Activities
The appellant was engaged in "Construction Activities" which were deemed taxable for service tax. The revenue initiated investigations based on which a show cause notice was issued demanding service tax amounting to ?6,36,181. The appellant contended that their activity did not fall under the category liable for service tax as they believed it was a sale and purchase of immovable property, not a service. They argued that the sale deed between them and the buyers indicated a transaction of sale of premises, not a constructional activity on behalf of the buyers. The appellant also cited CBEC circulars to support their position. The Original Adjudicating Authority upheld that the appellant was providing "Construction of Residential Complex Service" and confirmed the demand. The Commissioner (Appeals) affirmed this decision. However, the Tribunal noted that there was no evidence to establish that the appellant constructed a residential complex before a certain date or with more than two residential units after a specific date. Consequently, the Tribunal held that the appellant did not provide residential complex service before a certain date and was eligible for exemption under a specific notification for the period after that date. Therefore, the Tribunal set aside the impugned order and allowed the appeal.

Issue 2: Liability for Service Tax under Reverse Charge Mechanism
The appellant was also alleged to be liable for service tax under the reverse charge mechanism for certain specified services. The appellant argued that the liability under reverse charge mechanism did not apply as the service provider was a private limited company and certain conditions specified in the notification were not met. The appellant provided evidence to support their position, including work orders and records of direct payments to laborers. The Tribunal found that the demand for service tax under the reverse charge mechanism lacked merit as it did not consider the legal provisions and requirements of the charging notification. Therefore, the Tribunal set aside the demand under the reverse charge mechanism as well.

In conclusion, the Tribunal allowed the appeal, holding that the appellant was not liable for service tax on construction activities or under the reverse charge mechanism based on the lack of evidence and failure to satisfy legal requirements.