2018 (6) TMI 1357 - AT - Service Tax

Construction of Complex Service - Interpretation of Statute - Service provided after obtaining the completion certificate - liability of Service Tax - Held that - The provisions of law are that if the transaction has taken place in respect of sale of flat or any other property after issue of completion certificate then it is to be treated as sale of immovable property and there is no element of service tax involved in the same. The service tax is involved only when the consideration is received before the issue of completion certificate - Admittedly in the present case entire consideration which was subject matter of proceedings before us, was received after issue of completion certificate - the impugned order set aside and the amount deposited/made by the appellant during the course of investigation be refunded to the appellant forthwith - appeal allowed.

Issues Involved:
1. Demand of service tax under the category of 'Construction of Complex Service' post obtaining completion certificate.
2. Validity of completion certificates issued by an Architect.
3. Applicability of service tax on flats sold after obtaining the completion certificate.
4. Invocation of extended period of limitation.
5. Imposition of penalties under Sections 77 and 78 of the Finance Act, 1994.
6. Imposition of penalty on the Director.

Detailed Analysis:

1. Demand of Service Tax under 'Construction of Complex Service' Post Obtaining Completion Certificate:
The appellants were engaged in the construction and sale of residential flats and commercial spaces. They completed two projects, "Orange County" and "Olive County," and obtained completion certificates from a certified architect in June 2010 and October 2011, respectively. The dispute arose regarding the demand for service tax on flats sold after these dates. The Original Authority confirmed a demand of ?8,44,29,641/- for the period from 01.04.2010 to 31.03.2015, asserting that the completion certificates were not valid, thus making the appellants liable for service tax.

2. Validity of Completion Certificates Issued by an Architect:
The appellants argued that the completion certificates were issued by a competent person as per the law, and any consideration received after the issuance of such certificates should not attract service tax. They cited the Service Tax (Removal of Difficulty) Order, 2010, and CBEC clarifications which state that completion certificates issued by architects are valid for determining service tax liability. The Tribunal noted that the law does not authorize adjudicating authorities to question the validity of completion certificates issued by competent persons.

3. Applicability of Service Tax on Flats Sold After Obtaining the Completion Certificate:
The Tribunal observed that the provisions of law clearly state that any transaction of sale of flats post the issuance of a completion certificate is to be treated as a sale of immovable property, which does not attract service tax. Since the entire consideration in question was received after the issuance of the completion certificates, the Tribunal found the demand for service tax to be unsustainable.

4. Invocation of Extended Period of Limitation:
The appellants contended that the extended period of limitation could not be invoked as there was no suppression of facts or intent to evade tax. The Tribunal did not specifically address this issue in the judgment, focusing instead on the validity of the completion certificates and the timing of the receipt of consideration.

5. Imposition of Penalties under Sections 77 and 78 of the Finance Act, 1994:
The Original Authority had imposed penalties under Sections 77 and 78 of the Finance Act, 1994, on the appellants. The Tribunal, however, found that since the demand for service tax itself was not sustainable, the penalties could not be imposed. The penalties were thus set aside.

6. Imposition of Penalty on the Director:
A penalty of ?1 lakh was imposed on the Director under Section 78A of the Finance Act, 1994. The Tribunal, finding the main demand unsustainable, also set aside the penalty on the Director.

Conclusion:
The Tribunal set aside the impugned order, holding that the completion certificates issued by the architect were valid and that any consideration received post their issuance did not attract service tax. The Tribunal directed the refund of the amount deposited by the appellants during the investigation. The appeals were allowed, and the operative part of the order was pronounced in open court.

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