2022 (12) TMI 1053 - AT - Service Tax

Levy of Service tax - Construction of Complex Service - exemption by Government of India vide Notification No. 28/2010 dtd. 22.06.2010 - HELD THAT - The complex which is constructed with an intention for personaluse as residence by a person who is directly engaging any other person for designing/planning of layout and the construction of such complexes out of the ambit of such construction and thus from taxability. We draw the support from the case of COMMISSIONER OF CENTRAL EXCISE, AURANGABAD VERSUS MALL ENTERPRISES 2015 (11) TMI 333 - CESTAT MUMBAI wherein it was held that not only residential complex is designed or laid out by another person are excluded from the definition but also the ones intended for personaluse of such person i.e. the owner of the complex - In another case titled as NITHESH ESTATES LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, SERVICE TAX AND CUSTOMS BANGALORE-II 2015 (11) TMI 219 - CESTAT BANGALORE wherein it was held that the construction of residential complex for ITC (in that case) intended to provide accommodation built for own employees, activity was covered by definition of personaluse in Explanation to Section 65(91A) of Finance Act, 1994. Hence, the assessee‟s activity falls under exclusion of that Section and as such is excluded from levy of Service Tax. In the present case, the quarters/residential complexes were got constructed by the AMC and AUDA for urban poor people for their residential use, the same amounts to personal use‟. The confirmation of demand qua these services by the Commissioner is therefore not sustainable. In the case in hand in as much as in both the cases the construction service was provided to Jawaharlal Nehru National Urban Renewal Mission and Rajiv Awaas Yojana. It was held that the service tax is not leviable to such project. Hence, the ratio of the above judgment is directly applicable in the present case. Appeal allowed.

Summary

Issues:
- Applicability of service tax on construction of residential complex services under JnNURM scheme.
- Clarification on service tax liability by AUDA and AMC.
- Inclusion of VAT payment as a defense against service tax demand.
- Invoking the extended period for tax demand.
- Interpretation of the term "residential complex" under Section 65(91a) of the Finance Act.
- Exemption of service tax for projects under JnNURM and Rajiv Awas Yojana.
- Comparison with previous judgments on similar issues.

Analysis:
1. Applicability of service tax: The appellant was engaged in constructing residential complexes under the JnNURM scheme. The issue revolved around the classification of these services under "Construction of Complex Service" and the subsequent levy of service tax. The appellant contended that the projects were for economically weaker sections and were exempt from service tax as per tender terms and government notifications.

2. Clarification on service tax liability: The appellant sought clarification on service tax liability from AUDA and AMC but did not receive a clear response. The Commissioner opined that service tax was payable, but this information was not communicated to the appellant. The lack of clarity in the field regarding the introduction of service tax on residential complex services was highlighted as a defense.

3. VAT payment as a defense: The appellant argued that since they had paid VAT on the projects, no service tax could be demanded. They relied on the principle that once VAT is paid, service tax cannot be levied, citing relevant legal precedents to support their stance.

4. Extended period for tax demand: The appellant contested the invocability of the extended period for demanding service tax, emphasizing that the circumstances did not warrant such an action.

5. Interpretation of "residential complex": The Tribunal analyzed the definition of "residential complex" under Section 65(91a) of the Finance Act. It was established that complexes intended for personal use as residence by the owner, excluding those directly engaging others for construction, were exempt from taxability. Citing case laws, the Tribunal concluded that the construction for urban poor people for their residential use fell under the exclusion clause of the Act.

6. Exemption under JnNURM and Rajiv Awas Yojana: The Tribunal referenced previous judgments exempting projects under JnNURM and Rajiv Awas Yojana from service tax. Drawing parallels with these cases, the Tribunal held that the service tax demand on the appellant's projects was not sustainable, given the nature of the construction for urban poor people.

7. Comparison with previous judgments: The Tribunal compared the present case with previous judgments involving similar issues related to projects under JnNURM and Rajiv Awas Yojana. By aligning the facts and legal interpretations, the Tribunal found the impugned order unsustainable and set it aside, allowing the appeal with consequential relief.

In conclusion, the Tribunal ruled in favor of the appellant, setting aside the service tax demand on construction services for residential complexes under the JnNURM scheme. The judgment highlighted the exemption criteria, legal interpretations, and precedents supporting the appellant's position, ultimately leading to the allowance of the appeal.