2014 (4) TMI 687 - AT - Service Tax

Commercial and industrial construction service - construction work undertaken for educational institutions - Revenue submitted that the institution for which construction activity was being undertaken was collecting substantial fees for providing education. Therefore, the activity has to be considered as commercial activity only - Held that - The explanation relied upon by Ld. AR applies only to cover training or coaching centre which has to be taxed under section 65 (105) (zzzc). The activity of commercial or industrial construction is made taxable under section 65 (105) (zzzq). These days hardly any education is provided without collecting any fees and for that reason alone, the educational institutions cannot be prima facie considered a commercial institution. If such criterion is adopted even IITs has to be considered as undertaking business or commerce. The activities taxable under commercial training or coaching is on different type of activity where coaching for entrance examination etc. is sought to be taxed. Since in this matter the Bench has already granted waiver of pre-deposit of dues for assessees similarly placed, we grant waiver of pre-deposit of dues arising from the impugned order for admission of appeal in this case also - stay granted.

Summary

Issues: Scope of service tax on construction work for educational institutions under commercial and industrial construction service.

Analysis:
1. The applicant, engaged in construction work, was registered for service tax under commercial and industrial construction service. Revenue alleged non-payment of service tax for construction work done for educational institutions during a specific period and issued a show cause notice resulting in a confirmed amount against the applicant with interest and penalties.

2. The advocate for the applicant argued that the definition of 'industrial or commercial construction' only covers buildings primarily used for commerce and industry, not education. Citing precedents, he contended that educational activities do not fall under 'commerce' or 'industry,' seeking a waiver of pre-deposit for the appeal.

3. The Revenue argued that educational institutions charging substantial fees should be considered commercial entities. Referring to the explanation under section 65 (105) (zzzc) regarding commercial training centers, it was asserted that educational institutions, by collecting fees, should be treated as commercial institutions, justifying the need for pre-deposit.

4. The Tribunal analyzed the arguments and clarified that the explanation under section 65 (105) (zzzc) pertains to training or coaching centers, not commercial or industrial construction services taxed under section 65 (105) (zzzq). It noted that most educational institutions charge fees, but that alone does not make them commercial. Drawing a distinction between commercial training centers and educational institutions, the Tribunal granted a waiver of pre-deposit for the appeal, as done in similar cases, and ordered a stay on the collection of dues during the appeal's pendency.