2017 (6) TMI 116 - AT - Service Tax

Maintenance or management of immovable property service - levy of tax for the period prior to date of levy - Held that - the various activities being carried out by the appellant towards maintenance of immovable properties constructed by the Prestige Group are clearly falling within the category of Section 65(64)(b) which stands included in the statute book w.e.f. 16/06/2005 - we find no justification for the demand of service tax for the period October 2000 to June 2005 which is prior to the date of introduction of new service tax levy under the category of maintenance or management of immovable property made liable to service tax w.e.f. 16/06/2005 - appeal allowed - decided partly in favor of appellant.

Summary

Issues:
Interpretation of service tax category under the Finance Act, 1994 for real estate agency services and security agencies services. Application of service tax retrospectively. Justification for demand of service tax, education cess, interest, and penalties.

Analysis:
The appeal in this case was against the Order-in-Original passed by the Commissioner of Service Tax, Bangalore, regarding the categorization of services provided by the appellant under 'real estate agency' or 'security agencies' as per Section 65(94) of the Finance Act, 1994. The Revenue contended that the appellant was providing security services alongside other activities, leading to a demand for service tax, education cess, interest, and penalties. The appellant argued that they were engaged in maintenance services for commercial properties and that the demand was unjust as they had started paying service tax under the correct category post the relevant amendment. The appellant relied on various case laws to support their argument that services under a new category cannot be taxed retrospectively under prior categories.

The Tribunal observed that the activities of the appellant fell under the category of 'maintenance or management of immovable property' introduced in the statute from 16/06/2005. The Revenue had separated a portion of the consideration received by the appellant attributing it to security services due to the employment of security guards. However, the Tribunal agreed with the appellant's argument that services introduced under a new category cannot be taxed under previous categories retrospectively. Citing the case of Mahindra & Mahindra Contech Ltd., the Tribunal held that the demand for service tax for the period before the introduction of the new service tax levy was not sustainable. The Tribunal noted that similar views had been consistently upheld by higher appellate fora. Consequently, the impugned order demanding service tax for the period prior to the introduction of the new levy was set aside, and the appeal was allowed.

In conclusion, the Tribunal ruled in favor of the appellant, emphasizing that the demand for service tax for the period before the introduction of the new service tax levy under the category of maintenance or management of immovable property was not justified. The impugned order was set aside, and the appeal was allowed.