2015 (1) TMI 386 - AT - Service Tax

Waiver of pre deposit - construction of residential complexes - Invocation of extended period of limitation - Held that - Since the amounts were paid during the course of construction and were not collected on actual basis, it cannot be said that it is not part of the construction activity. Moreover provision of electricity, water and advocate fee for verifying documents etc are essential requirements to be fulfilled before the building is handed over. It was also agreed that such payments were made to BWSSB, KEB etc. before the occupancy certificate was issued. The payments to BWSSB etc. as well as the payments by the buyer were made during the construction period. Therefore it is difficult to accept the view that it is not part of the construction cost. Once it is part of the construction cost, it becomes liable to tax. Therefore prima facie we do not find any merit in the appellant s case. Extended period of limitation - Held that - extended period cannot be applied and further prior to 01.07.2010, tax could not have been demanded. This is because the amendment to the definition which resulted in transaction within the individual buyer/builder/developer also becomes liable to service tax only after 01.07.2010. Further we also consider that the issue is a debatable one and subject to different interpretations and therefore extended period may not be invokable. However since we have taken a view that appellant is liable to pay service tax on these elements of cost, we consider that appellant should deposit the entire amount of tax demanded and payable with interest for hearing the appeal for normal period. - Partial stay granted.

Issues Involved:
1. Whether the appellant should have paid service tax on various charges collected from customers during the construction of residential complexes.
2. Whether the charges collected by the appellant should be included in the taxable value under the Construction of Complex Service.
3. Whether the appellant deliberately suppressed facts to evade payment of service tax.
4. Whether the appellant is eligible for certain exemptions, benefits, or schemes under the law.
5. Whether the extended period for tax demand can be applied.
6. Whether the appellant should deposit the demanded tax amount with interest for hearing the appeal.

Issue 1: Service Tax on Charges Collected:
The appellant, a builder/developer, faced proceedings for not paying service tax on BWSSB charges, KEB charges, and advocate fees collected from customers during 2006-07 to 2010-11. The department argued that these charges should have been included in the taxable value under the Construction of Complex Service.

Issue 2: Taxable Value Inclusion:
The department contended that charges collected by the appellant from customers for various services should be part of the construction cost and thus included in the taxable value under Section 65(105) (zzzh) of the Act. The appellant's inability to provide month-wise data led to a suggestion of treating the amount as collected at the beginning of each financial year.

Issue 3: Suppression of Facts:
The department alleged that the appellant deliberately concealed the actual consideration received for constructed apartments to evade service tax payment. The appellant argued that they were not required to pay service tax before 01.07.2010, citing relevant circulars and legal precedents.

Issue 4: Eligibility for Exemptions and Benefits:
The appellant claimed that certain charges collected were for post-construction activities like obtaining certificates and legal formalities, not subject to service tax under Construction of Complex Service. They also argued for benefits under various schemes and exemptions, including CENVAT credit on inputs.

Issue 5: Applicability of Extended Period:
The Tribunal found merit in the appellant's argument that the extended period for tax demand could not be applied, especially before 01.07.2010, due to changes in the law. The issue was considered debatable with different interpretations, making the extended period not invokable.

Issue 6: Deposit of Demanded Tax Amount:
Although the Tribunal ruled in favor of the department regarding tax liability on certain charges, they acknowledged the appellant's submission on the extended period and the debatable nature of the issue. The Tribunal directed the appellant to deposit the demanded tax amount with interest for the normal period to hear the appeal, allowing a partial deposit to stay the recovery of balance dues during the appeal.

This detailed analysis covers the key issues involved in the legal judgment, providing a comprehensive overview of the arguments presented by both parties and the Tribunal's findings and directives.

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