Cenvat Credit on input services allowed if used in the course of furtherance of business

[CA Bimal Jain]

The CESTAT, Hyderabad in the matter of M/S. VITP PRIVATE LIMITED (FORMERLY KNOWN AS VANENBURG IT PARK PRIVATE LIMITED) VERSUS COMMISSIONER OF CENTRAL TAX, HYDERABAD-IV [2022 (7) TMI 1030 - CESTAT HYDERABAD] set aside the demand of service tax on refundable security deposit on the grounds that security deposit is refundable deposit and it cannot be included in the value of taxable service. Further, when there was no services rendered by the assessee towards the termination charges, the demand of termination charge cannot be sustained. Furthermore held that, assessee is entitled to the Cenvat Credit of input services for construction of immovable property, further let out to various customers.

Facts:

M/s. VITP Private Limited (“the Appellant”) has been engaged in the business of development of IT Parks and such other industrial and commercial places which are subsequently given on rent to a wide spectrum of industries. Service tax audit was conducted by the Superintendent, (“the Respondent”) and accordingly, Show Cause Notices were issued for four periods between 2007 to 2013. Disputes has been arrived and all the four appeals pertaining to the period of June 2007 to June 2013 are disposed off by a common order.

A table has been reproduced below which shows the demand raised for the relevant period in each appeal.

S.no	Particulars	ST/27964/2013 (Appeal I)	ST/20282/2014 (Appeal II)	ST/21736/2014 (Appeal III)	ST/21497/2015 (Appeal IV)
1	Period	June 2007 to March 2011	April 2011 to September 2012	April 2010 to September 2012	October 2012 to June 2013
2	Demand	INR 11,58,22,869 (i)Security Deposit – INR 2,87,57,891 (ii)Reimbursement expenses – INR 6,70,02,785 (iii)Credit related to construction of immovable property INR 1,93,65,135 (iv)Credit on event management -INR 6,97,058	INR 4,34,55,505 (i)Security Deposit- INR 1,13,91,754 (ii)Reimbursement expenses – INR 3,20,63,751	INR 14,62,807 (i)Termination charges – INR 14,62,807	INR 45,86,180   (i)Reimbursement of Diesel charges –INR 45,85,180

Appellant’s contention:

•  The Security Deposit is a refundable deposit and are returned to the tenants at the time of termination of the lease and no service is rendered in relation to the receipt of the Security Deposit, no taxable service is being rendered with relation to the Refundable Security Deposit collected, there can be no question of construing the Security Deposits from the tenants.
•  The termination charges have not been collected towards the services of renting of immovable property service and it cannot be added for valuation of service tax purposes under the said service head.
• The Cenvat Credit has been correctly availed on input services like works contract service, construction service, consultancy, fire protection service used in the construction of immovable property as per Rule 2(l) of Cenvat Credit Rules, 2004 (“the Cenvat Credit Rules”).

Issues:

The demand and the confirmation of the Service Tax liability is confined to the following five issues:-

• Applicability of Service Tax on refundable security deposit collected by the Appellant from its customers.
•  Applicability of Service Tax on reimbursement of expenses from its customers on account of water, electricity and diesel expenses incurred for provision of services.
• Applicability of Service Tax on termination charges collected from customers for early termination of lock in period of lease.
•  Eligibility of Cenvat Credit of works contract services and other services for construction of immovable property and Cenvat Credit on event management services for promotion of business of the Appellant.

Held:

The CESTAT, Hyderabad in M/S. VITP PRIVATE LIMITED (FORMERLY KNOWN AS VANENBURG IT PARK PRIVATE LIMITED) VERSUS COMMISSIONER OF CENTRAL TAX, HYDERABAD-IV [2022 (7) TMI 1030 - CESTAT HYDERABAD] has held as under:

•  Service tax on refundable Deposit:

 Relied upon the judgement of Tribunal in the case of ELECTRONICS TECHNOLOGY PARKS VERSUS C.C.,C.E. & S. T-TRIVANDRUM (VICE-VERSA) [2021 (7) TMI 1095 - CESTAT BANGALORE] wherein it was held that refundable deposit cannot be included in the value of taxable service for the purpose of levy of Service Tax and this issue is decided against the Revenue Department and accordingly the demand of service on security deposit cannot be sustained and is thus set aside.

• Service tax on reimbursement of expenses of diesel, water and electricity from the customers:

The expenses are mere reimbursement based on total cost incurred by the Appellant and the total floor area of the customers is not in dispute which goes to show that there is no profit element involved in the above reimbursements. Further, that the Appellant cannot be saddled with the liability on such reimbursements on account of water, electricity and diesel charges and thus the demand of Service Tax on this ground cannot be sustained either and is thereby 0quashed.

• Service Tax on termination charges:

 There was no service rendered by the Appellant towards such charges and the same was in the nature of penalty for early termination than the agreed terms of lease. Thus, it is not a consideration for the service of renting of immovable property but a compensation or liquidated damages for reneging the contract of renting. Also, the Respondent has considered the termination charges  under security deposit above as these charges were adjusted with the deposit lying with the Appellant and thus, the demand cannot be sustained as it will lead to taxing the same amount twice. Hence the demand on account of termination charges is also liable to be quashed.

• The issue of eligibility of Cenvat Credit on input services used for construction of immovable property.

The Cenvat Credit of input services as availed by the Appellant for construction of immovable property which was further let out to various customers is eligible to be allowed. As regards the eligibility of Cenvat Credit on event management services, we find that Rule 2(l) of the Cenvat Credit Rules doesn’t exclude any such service from the eligibility of availment of Cenvat Credit as these expenses have been incurred in the course of furtherance of business and are thus business promotion expenses and the same is eligible as Cenvat Credit in our considered view.

(Author can be reached at [email protected])