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2024 (5) TMI 667 - AT - Service TaxNon-payment of service tax - Works Contracts Service in respect of construction of residential complexes services - single residential complex - appellant had discharged service tax for the period upto 1.1.2009 under construction of residential complex services after availing the abatement - Works Contracts Service provided for construction of Engineering College to M/s.KTVR Siddhammal Charitable Trust - period April 2009 to February 2012 - extended period of limitation. Works Contracts Service in respect of construction of residential complexes services - HELD THAT - The Tribunal in the case of M/S KRISHNA HOMES VERSUS CCE, BHOPAL AND CCE, BHOPAL VERSUS M/S RAJ HOMES 2014 (3) TMI 694 - CESTAT AHMEDABAD had considered the very same issue and held that a promoter/developer/builder is not subject to levy of service tax upto 1.7.2010 in respect of construction of residential complex. For the period w.e.f. 1.7.2010, the appellant is liable to pay service tax under the construction of residential complexes. The appellant has discharged service tax after 1.7.2010 till February 2012. However, the demand has been raised in the SCN denying the abatement claimed by the appellant. It is not disputed that the appellant has used materials as well as services for construction of the residential complex - the discussions and the finding of adjudicating authority that the appellant is not eligible for abatement in respect of works contract service is not legal and proper and cannot be sustained. The appellant has paid a sum of Rs.32,15,158/- after 1.7.2010 upto February 2012 as disclosed in ST-3 returns. The demand under Works Contract Service for the disputed period on construction of RCS denying abatement cannot sustain and requires to be set aside - The amount of Rs.32,15,158/- paid by appellant is not disturbed. Demand under Works Contracts Service provided for construction of Engineering College to M/s.KTVR Siddhammal Charitable Trust - HELD THAT - It is explained by the Board in CBEC Circular No.80/10/2004-ST dt. 17.09.2010 that, when the building is solely used for educational purposes, the levy of service tax is not attracted. It is found that the building having been used for educational purpose and being non-commercial purpose, the said construction activity cannot be subject to levy of service tax during the disputed period. Extended period of limitation - HELD THAT - It has to be noted that the entire demand has been raised on the basis of figures taken from the accounts maintained by the appellant. There is no evidence of positive act of suppression of facts with intent to evade payment of service tax established against the appellant. Further, the appellant has been paying the service tax on RCS upto 2009 and had stopped paying service only in accordance to the clarification made by Board s circular. Thereafter, with effect from 1.7.2010 the appellant started paying service tax again. The Appellant had not discharged service tax with regard to the building constructed for Engineering College on the bonafide belief that the building being solely used for educational purpose would not fall within the levy of service tax liability, as clarified by the Board circular - the invocation of extended period is not legal and proper. The issue of limitation is also answered in favour of the appellant. The appeal is allowed.
Issues Involved:
1. Demand under 'Works Contracts Service' for construction of residential complex. 2. Demand under 'Works Contracts Service' for construction of Engineering College. 3. Invocation of the extended period of limitation. Summary: 1. Demand under 'Works Contracts Service' for construction of residential complex: The Tribunal examined the demand made for the period April 2009 to February 2012. The appellant, categorized as a builder/promoter/developer, was initially not liable to pay service tax as per Circular No. 108/02/2009 dated 29.01.2009. For the period prior to 1.7.2010, the Tribunal held that the appellant is not liable to pay service tax under 'Works Contracts Service' for construction of residential complexes. Post 1.7.2010, the appellant paid service tax but the department denied abatement. The Tribunal found this denial erroneous, holding that the appellant is entitled to abatement, referencing the case of Heavy Engineering Corporation Ltd. VS CCGST - 2023 (8) Centax 287 (Tri.-Calcutta). Consequently, the demand for the disputed period was set aside, maintaining the payment of Rs.32,15,158/- made by the appellant. 2. Demand under 'Works Contracts Service' for construction of Engineering College: The appellant argued that the construction of the Engineering College for M/s.KTVR Siddhammal Charitable Trust was not for commercial purposes. The Tribunal referred to CBEC Circular No.80/10/2004-ST dated 17.09.2010, which clarified that buildings used solely for educational purposes are non-commercial and not subject to service tax. Since the college was recognized by AICTE and used solely for educational purposes, the Tribunal held that the construction activity could not be subjected to service tax. 3. Invocation of the extended period of limitation: The Tribunal noted that the demand was based on figures from the appellant's accounts, with no evidence of suppression of facts or intent to evade tax. The appellant had followed the Board's circular and paid service tax accordingly. The Tribunal ruled that the invocation of the extended period was not legal and proper, thereby answering the issue of limitation in favor of the appellant. Conclusion: The appeal was allowed with consequential relief, maintaining the payment of Rs.32,15,158/- made from 1.7.2010 to February 2012.
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