2013 (7) TMI 44 - AT - Service Tax

Commercial or Industrial construction - Section 65 (25b) - Whether commercial or industrial construction Service provided on the property was a service provided to any other person (the prospective buyers) new building intended for sale deemed to be a taxable service - Held that - since admittedly the transaction in issue in the present appeal falls during the period 4.7.05 to 30.6.2006 (prior to introduction of the Explanation to Section 65(105)(zzq) and the service offered by the assessee in relation to the construction of commercial or industrial complex in respect of WTP cannot be said to be service provided or to be provided to another person, the transaction falls outside the purview of the taxable service. - as decided in Maharashtra Chamber of Housing Industry vs. UOI (2012 (1) TMI 98 - BOMBAY HIGH COURT) demand set aside.

Summary

Issues:
1. Assessment of service tax liability on commercial and industrial construction service provided by the appellant.
2. Interpretation of relevant statutory provisions regarding taxable service under Section 65(105)(zzq) of the Finance Act, 1994.
3. Application of the Explanation to Section 65(105)(zzq) introduced by the Finance Act 2010.
4. Impact of the Explanation on the scope of taxable services provided by builders to buyers.

Analysis:

1. The appellant appealed against the order assessing service tax liability on the commercial and industrial construction service provided by them for a project known as World Trade Park. The Revenue contended that the appellant rendered a taxable service due to receiving advances for space/shop/office in the complex, even though title had not passed to buyers. The adjudicating authority concluded that the appellant's activities constituted commercial or industrial construction service under relevant statutory provisions.

2. The definition of 'commercial or industrial construction' under Section 65(25b) and taxable service under Section 65(105)(zzq) were crucial. The focus was on whether the service provided by the appellant was to another person, i.e., the prospective buyers. The adjudicating authority interpreted the expression 'in relation to' broadly, leading to the conclusion that the appellant's activities fell within the taxable service category.

3. The Explanation added to Section 65(105)(zzq) by the Finance Act 2010 clarified that construction intended for sale by a builder, where no sum is received from the buyer before completion certificate issuance, is deemed a taxable service. This Explanation expanded the scope of taxable services provided by builders to buyers, as highlighted in a judgment by the Bombay High Court.

4. The Tribunal's analysis aligned with the Bombay High Court's interpretation, emphasizing that the Explanation aimed to broaden the existing taxable service scope. The Tribunal also clarified that the Explanation did not have retrospective application. As the appellant's transaction predated the Explanation's introduction, it did not fall within the taxable service ambit, leading to the quashing of the adjudication order.

This detailed analysis of the judgment showcases the interpretation of relevant statutory provisions, the impact of the Explanation, and the application of legal principles to determine the appellant's liability for service tax on the commercial and industrial construction service provided by them.