2018 (5) TMI 822 - AT - Service Tax

Commercial or Industrial Construction Service - the appellant had entered into the agreements with M/s Pooja Educational Society, Phagi and M/s Bansal Classes Pvt. Ltd, Kota for construction of the buildings for them - Held that - It is an admitted fact on record that the appellant had provided the construction service to M/s Pooja Educational Society, which is non-commercial organization, and is not involved in the activity of any business or commerce. Since the definition under Section 65 (105) (zzq) mandates that the activity of commercial or industrial construction should only be taxed, in absence of such construction undertaken by the appellant, the Service Tax demand cannot be confirmed under that category of service - the adjudged demand confirmed on construction of building for Pooja Educational Society cannot be sustained on the appellant. Services provided to M/s Bansal Classes Pvt. Ltd. - mobilization advance was received and the same was adjusted towards the supply of material - Held that - Since the documents are required to be verified for ascertaining the fact whether, the said amount was towards supply of material or for providing service, we are of view that the matter should go back to the original authority for necessary verification of the desired documents - matter on remand. Appeal allowed in part and part matter on remand.

Summary

Issues:
1. Service Tax liability for construction services provided to M/s Pooja Educational Society.
2. Service Tax liability for construction services provided to M/s Bansal Classes Pvt. Ltd.
3. Applicability of penalties under sections 76 and 78 of the Act.
4. Verification of documents related to mobilization advance and supply of material for services provided to M/s Bansal Classes Pvt. Ltd.

Analysis:

Issue 1: Service Tax liability for construction services provided to M/s Pooja Educational Society
The appellant contended that since the service receiver, M/s Pooja Educational Society, is a non-commercial organization not engaged in business or commerce, the construction service provided should not be taxed under the category of Commercial or Industrial Construction Service. The Tribunal agreed, citing a similar precedent where it was held that construction for non-commercial purposes does not fall under taxable services. Therefore, the Tribunal set aside the Service Tax demand for construction services provided to M/s Pooja Educational Society.

Issue 2: Service Tax liability for construction services provided to M/s Bansal Classes Pvt. Ltd.
The appellant claimed that the amount received from M/s Bansal Classes Pvt. Ltd. was a mobilization advance adjusted against material supply, not for taxable services. However, the appellant failed to provide sufficient documentary evidence to support this claim, except for a certificate from M/s Bansal Classes Pvt. Ltd. Therefore, the Tribunal remanded the matter to the original authority for further verification of documents to determine if the amount was indeed for material supply or service provision. The original authority was instructed to consider imposing penalties under sections 76 and 78 of the Act and assess the applicability of the extended period of limitation.

Issue 3: Applicability of penalties under sections 76 and 78 of the Act
The Tribunal did not make a specific ruling on the applicability of penalties under sections 76 and 78 of the Act for the construction services provided to M/s Pooja Educational Society. However, it directed the original authority to consider imposing penalties for services provided to M/s Bansal Classes Pvt. Ltd. after verifying the documents related to the mobilization advance and material supply.

Issue 4: Verification of documents related to mobilization advance and supply of material for services provided to M/s Bansal Classes Pvt. Ltd.
The Tribunal emphasized the importance of verifying the documents related to the mobilization advance and supply of material for services provided to M/s Bansal Classes Pvt. Ltd. The original authority was tasked with conducting a fresh fact-finding to determine the nature of the amount received and whether it was for material supply or service provision. Additionally, the original authority was instructed to assess the possibility of imposing penalties under sections 76 and 78 of the Act and consider the invocation of the extended period of limitation in this case.