2018 (1) TMI 5 - AT - Service Tax

Levy of service tax - receipts relating to deposits received from the tenants by the appellant - Rentals receipts from open plot - Parking fees - Held that - the deposits were received from the tenants by the appellant do not have the character of rental receipts being security deposits that shall not form part of gross value and shall not be liable to service tax. Rentals receipts from open plot - Held that - Rentals receipts from open plot shall be exigible to service tax with effect from 01/07/2010 and not prior to the statutory provision inserted in terms of clause (v)(b) under Section 65(105)(zzzz) of the Finance Act, 1994. Parking fees - Held that - Parking fees received by the appellant from farmers not being in coverage of the taxable entry under Section 65(105)(zzzz) of the Finance Act, 1994, that shall not be taxable. Penalty - case of appellant is that tax having been paid on the receipts from renting of immovable property with interest, there may not be levy of penalty - Held that - Levy of service tax on renting of immovable property has travelled to various legal forums from the date of inception of levy. Therefore, there was confusion among tax payers for which there may be no levy of penalty on the appellant on renting of immovable property. Appeal allowed in part.

Issues:
1. Taxability of receipts related to renting of immovable property, including deposits, rentals from open space, and parking fees.
2. Treatment of security deposits received from tenants in the calculation of service tax liability.
3. Taxability of rental receipts from open plots.
4. Taxability of parking fees received from agriculturists.
5. Disputed tax liability on receipts other than the specified items.
6. Imposition of penalty on the appellant for service tax payment.

Analysis:
1. The appellant argued that receipts from deposits, rentals from open space, and parking fees related to renting of immovable property should not be subject to service tax. The statutory provision did not explicitly include these receipts for taxation. The appellant paid service tax on other demands but contested the tax on these three items, seeking a cum-tax benefit.

2. Regarding deposits received from tenants, the appellant contended that since these were returnable, they should not be considered part of the gross rent received. Rent from open plots became taxable post the insertion of a specific clause in the Finance Act, effective from 01/07/2010. The dispute covered the period from 2007-08 to 2011-12, with the appellant acknowledging the tax liability for the period after 01/07/2010.

3. The issue of parking fees received from agriculturists was raised, arguing that such fees were not covered under the taxable entry in the Finance Act. The appellant maintained that these fees should not be taxed as per the law.

4. It was clarified that receipts from immovable property, excluding the three contested items, would be liable to service tax. The revenue supported the adjudication, and both sides were heard on the matter.

5. The judgment confirmed that security deposits from tenants did not constitute rental receipts for tax purposes. Rent from open plots was deemed taxable from 01/07/2010 onwards, as per the relevant statutory provision. Parking fees from farmers were deemed non-taxable under the Finance Act.

6. The appellant did not dispute the tax liability on rent receipts apart from the specified items, leading to the confirmation of tax demand on those receipts. The appellant argued against the imposition of a penalty, citing the historical confusion among taxpayers regarding the levy of service tax on renting of immovable property. Considering the circumstances, the appeal was partly allowed with specific directions.

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