2016 (10) TMI 745 - AT - Service Tax

Levy of service tax - scope of commercial and industrial construction which came into effect from 10.9.2004 - scope of construction of complex services which came into effect from 16.6.2005 - construction work for government and PSUs. - Held that - the work listed out at S. No. a and b is for the construction of staff quarters and Hostel for the staff of Ministry of Defence as well as Government of Chhattisgarh. It is to be noted that Government has given the permission to respondent to carry out the construction work but nature of use of the building on completion is clearly for the personal use of Government for allotment to its staff. In view of the Explanation in section 65 of the Finance Act, 1994, no service tax can be levied on such construction of complex service. In respect of the work at Sl. No. 3, there can be no doubt that this construction has been undertaken by the respondent for the Government Dental college cum Hospital at Raipur for the Government of Chhattisgarh. - In view of CBEC circular dated 17-9-2004, the service outside the ambit of service tax. All the three constructions outside the ambit of service tax - appeal dismissed - decided against Revenue.

Summary

Issues:
Levy of service tax on construction services provided by a partnership firm engaged in construction work for government and PSUs.

Analysis:
The appeal was filed by the Revenue against the order of Commissioner Raipur dated 26.2.10, which dropped the proceedings initiated under a show cause notice demanding service tax of about ?3.02 crores along with penalties. The Revenue challenged the construction services provided by the respondent, including the construction of dwelling units for a Ministry of Defence project, hostel building, staff quarters, and a government dental college cum hospital building. The Revenue argued that these services were liable for service tax under the categories of construction of complex services and commercial or industrial construction services.

The respondent refuted the Revenue's claims, stating that the construction was primarily for personal use by the Ministry of Defence and the Government of Chhattisgarh, and therefore, not subject to service tax. They argued that the constructions were intended for government staff accommodations and educational purposes, falling outside the scope of taxable services. The respondent also cited relevant case laws to support their position.

After hearing arguments from both parties, the Tribunal found that the construction work for staff quarters and hostel buildings was for personal use by the government entities, exempting them from service tax as per the Explanation in clause 65 of the Finance Act, 1994. Regarding the construction of the government dental college cum hospital building, the Tribunal referred to Circular No. 79-9-2004 ST, which clarified that constructions for educational, charitable, or non-profit purposes undertaken by government entities were not taxable. Based on this clarification, the Tribunal concluded that the constructions in question were non-commercial in nature and therefore not subject to service tax during the relevant period.

In light of the above analysis, the Tribunal upheld the order of the Commissioner and dismissed the Revenue's appeal, ruling that the constructions in question were not liable for service tax.