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2024 (12) TMI 945 - AT - Service TaxClassification of services - Construction of Complex Service and Works Contract Service - liability to pay Service Tax under the taxable category of Transportation of Goods by Road Service during the period from 01.10.2006 to September, 2011 - Non-production of documents in support that no advance has been received - - liability to pay service tax on the services rendered during the period from October, 2006 to March, 2015 - liability of interest and penalty. Classification of services - Construction of Complex Service and Works Contract Service - HELD THAT - It is an admitted fact that the nature of service being provided by the assessee was more appropriately classifiable under Works Contract Service for the period prior to 01.04.2012 as also during the subsequent period. This is also clear from the department s stand in Appeal that appellants were having composite contract i.e., works contract. It is also now a settled law that no demand can be made under Works Contract Service for the period prior to 01.07.2007 as there was no specified service for Works Contract prior to 01.07.2007, as held by Hon ble Supreme Court in the case of Larsen Toubro 2015 (8) TMI 749 - SUPREME COURT . Therefore, the demand prior to 01.07.2007 is not sustainable on this ground itself as the service provided was in the nature of composite contract and could not have been charged to Service Tax by classifying the same under Construction of Residential Complex Service - It is also a settled legal position that any flat or building/ villa sold post receipt of OC cannot be subjected to Service Tax. However, in case, any advance has been taken before issuance of OC, then Service Tax liability is fastened on the service provider for the period post 01.07.2010. Non-production of documents in support that no advance has been received - HELD THAT - It is observed that in the first round of appeal, the Tribunal had, while remanding the matter to the Original Adjudicating Authority, had invited his attention to Circular No. 151/2/2012-ST dt. 10.02.2012, which clarified about non-leviability of Service Tax for the period prior to 01.07.2010 in respect of construction services provided by the builder/ developer in terms of Board Circular No.108/02/2009-ST dt. 29.01.2009. Whereas, for the period after 01.07.2010, the construction services provided by the builder/ developer are taxable in case any part of the payment/ development rights of the plan was received by the developer before the issuance of completion certificate. Therefore, the principles are very clear that if any payment has been received from the customer or development right has been received from the land owner then when the construction service is provided to both the land owner and the buyer, Service Tax would be leviable in case advance development rights have been received. Further, there are certain submissions by the department concerning calculation of Service Tax on account of non-furnishing of relevant documents evidencing non-receipt of advance, as also the authority for issuance of OC in the respective area of construction and therefore, the matter may be considered for remanding back to the Original Adjudicating Authority. There are merit in the submissions of Department and therefore, remand these orders covered in these appeals to Original Authority. Thus, in the facts of the case, discussions and settled legal position, there is no Service Tax liability for the period before 01.07.2010 and for the period after 01.07.2010, as also w.e.f. 01.04.2012, as regards the leviability of Service Tax, the matter is remanded to the Original Adjudicating Authority to recalculate, after going through the documents submitted by the assessee and keeping in view the observations made in the foregoing paras. He shall also adjust all the payments already made towards Service Tax liability and work out the net remaining liability, which will be required to be paid by the assessee. All the three appeals are disposed of by way of remand to the Original Adjudicating Authority.
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