2017 (1) TMI 660 - AT - Service Tax

Composite works contract - construction of residential building in terms of contracts entered into with their clients - extended period of limitation - Held that - the service tax liability in respect of composite works contract has been settled by the Hon ble Supreme Court in Larsen & Toubro Ltd. 2015 (8) TMI 749 - SUPREME COURT where it was held that works contract is a separate species of contract distinct from contracts for services simplicitor - It was concluded that there was no charge or machinery to levy and assess service tax on indivisible composite works contract as per Finance Act, 1994 prior to 01/06/2007. The issue needs to be re-examined by the Original Authority afresh. The learned Counsel admitted that for the contracts executed after 01/06/2007, they are liable to service tax under works contract service - appeal allowed by way of remand.

Summary

Issues:
1. Service tax liability on composite works contract prior to 01/06/2007.
2. Tax liability on residential complexes constructed for armed forces.
3. Applicability of penalties under Section 76 and 78 of the Finance Act, 1994.
4. Remand of the case to the Original Authority for fresh decision.

Analysis:
1. The appeal challenged a service tax demand against the appellant for the period 16/06/2005 to 31/03/2008 under the category of construction of complex service. The appellant argued that there was no service tax liability on composite works contract before 01/06/2007, citing a Supreme Court decision. The Tribunal acknowledged the settled nature of service tax liability on composite works contracts per the Supreme Court ruling in Larsen & Toubro Ltd. The case was remanded to the Original Authority for a fresh decision, considering the change in legal interpretation post-01/06/2007.

2. The appellant contended that residential complexes constructed for armed forces were for personal use and should not be subjected to tax. The Authorized Representative argued that the appellant was a sub-contractor and the exemption for personal use did not apply. The Tribunal noted the differing interpretations and remanded the case for a re-examination by the Original Authority, emphasizing the need to consider the applicability of tax in light of evolving case laws and statutory provisions.

3. The Original Authority had imposed penalties under Section 76 and 78 of the Finance Act, 1994. However, the Tribunal's decision to remand the case for a fresh examination implied a reconsideration of the penalties as well. The appellant was to be given an opportunity to represent their case afresh, including addressing the issue of penalties in light of the revised decision on tax liability.

4. The Tribunal allowed the appeal by way of remand, emphasizing the need for the Original Authority to re-evaluate the case in light of the legal developments and interpretations post-01/06/2007. The decision highlighted the importance of considering changes in case laws and statutory provisions in determining the service tax liability on composite works contracts and residential complexes. The appellant's right to a fair representation and consideration of penalties under the Finance Act, 1994, was reiterated in the remand order.