2014 (11) TMI 276 - AT - Service Tax

Construction of Residential Complex Service - Liability to pay tax prior to 1-7-2010 and subsequent to it - Held that - Prior to 1.7.2010, what was liable was construction of residential complex and when there is an agreement between the buyer and the customers for construction of flat, it cannot be said that such an agreement is for construction of residential complex. Therefore, prior to 1.7.2010, when the explanation was added to the definition of commercial or industrial complex service , tax is not payable. after 1.7.2010, the appellant does not have a case on merits. Adjustment to tax paid for the earlier period with the tax liability of subsequent period - Held that - Admittedly, the amount was paid prior to 1.7.2010. Despite discussions for quite some time and despite queries from the Bench, learned counsel could not convince that this amount was not paid after collecting from customers and also could not indicate the date on which such payment was made. We also find this amount has not been appropriated by the original authority also. Therefore, this amount cannot be taken for adjustment with the amount payable subsequent to 1.7.2010 - prior to 1.7.2010, the appellant is not liable to pay tax and adjustment of amount paid prior to 1.7.2010 is not possible - Stay denied for the subsequent period.

Summary

Issues:
- Assessment of service tax liability for the period from 2006-07 to 2010-11
- Whether the appellant is liable to pay service tax for the construction of flats on undivided land
- Applicability of service tax prior to and after 1.7.2010

Analysis:
1. Assessment of service tax liability (2006-07 to 2010-11):
The appellant received a significant amount towards the sale of flats but paid minimal service tax. The Revenue contended that the construction of flats on undivided land falls under the category of 'Construction of Residential Complex Service'. However, the appellant argued that based on circulars, they were not required to pay service tax. The Tribunal examined the activities undertaken by the appellant and concluded that the appellant did not have a case on merits post-1.7.2010. The appellant's payment prior to this date was deemed insufficient for adjustment, and the Tribunal confirmed the demand of service tax with interest and penalties for the period in question.

2. Liability for construction of flats on undivided land:
The dispute centered around whether the construction of flats on undivided land constitutes 'construction of residential complex service' liable for service tax. The appellant contended that the ownership of the land was with the buyer, and they were only responsible for constructing the flats. The Tribunal rejected the Revenue's argument that the transaction involved two agreements - one for the sale of undivided land and the other for construction. It was held that prior to 1.7.2010, the liability was for 'construction of residential complex', not for individual flat construction agreements. Therefore, the appellant was not liable to pay tax before this date.

3. Applicability of service tax pre and post 1.7.2010:
The Tribunal clarified that before 1.7.2010, the appellant was not obligated to pay tax for agreements related to flat construction. However, for services rendered after 1.7.2010, the appellant was directed to deposit the entire amount of service tax with interest and penalty. The Tribunal disposed of the stay application and concluded that the appellant's liability for service tax arose only from July 2010 onwards, based on the change in the definition of 'commercial or industrial complex service'.

This detailed analysis of the judgment highlights the key issues addressed by the Tribunal regarding the assessment of service tax liability, the nature of construction activities, and the timeline for the applicability of service tax regulations.