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2018 (10) TMI 404 - AT - Service TaxConstruction services - Construction of residential complex services - Works Contract Service - Composite contracts or Pure Services - it was noticed that the appellant did not pay service tax on the entire construction activities and also that they have paid service tax under the works contract service on the taxable value realized from customers towards builders share of constructed area - period involved in the present case is from October 2004 to March 2009. Held that - The contracts entered between the appellant and the service recipient is a composite contract which involves both supply of materials as well as rendering of service - The Tribunal in the case of Real Value Promoters Ltd. 2018 (9) TMI 1149 - CESTAT CHENNAI had occasion to analyse the issue regarding demand of service tax under construction of residential complex services, commercial or industrial construction service and construction of complex service. The Tribunal has held that prior to 1.6.2007, levy of service tax can be under the above categories only for contracts which are purely for services. That after 1.6.2007, the above categories would be applicable only if the contracts are purely services and which are not composite contracts. Further, it was held that after 1.6.2007, demand in respect of composite contracts would fall under works contract service only - the demand of service tax under commercial or industrial construction service (residential complex) cannot sustain after the period 1.6.2007. The levy of service tax prior to 1.6.2007 cannot also sustain by application of the decision of the Hon ble Supreme Court in the case of Larsen Toubro Ltd. 2015 (8) TMI 749 - SUPREME COURT . Appeal allowed - decided in favor of appellant.
Issues Involved:
1. Demand of service tax on services rendered to landowners under Commercial or Industrial Construction Service (CICS). 2. Demand of service tax on services rendered to buyers from the appellant’s portion under CICS instead of Works Contract Service (WCS). 3. Applicability of service tax on composite contracts prior to 1.6.2007. Issue-wise Detailed Analysis: 1. Demand of Service Tax on Services Rendered to Landowners under CICS: The appellant entered into Joint Development Agreements with landowners to develop land into a commercial complex, where 50% of the constructed area was allotted to landowners and the remaining 50% to the appellant. The Service Tax Commissionerate, Chennai, issued a show cause notice alleging non-payment/short payment of service tax on the entire construction activities. The demand was based on the premise that the appellant rendered commercial or industrial construction service to landowners by handing over 50% of the constructed area. The value of such taxable service was calculated based on the amount charged by the appellant from buyers of the appellant’s share of the constructed area. The demand was made without allowing any abatement under Notification 1/2006 ST, as the appellant availed Cenvat credit on certain input services. The Tribunal, referencing the Supreme Court decision in CCE, Kerala v. Larsen & Toubro Ltd., held that service tax on indivisible composite works contracts prior to 1.6.2007 was not sustainable. Therefore, the demand for the period prior to 1.6.2007 under CICS was set aside. 2. Demand of Service Tax on Services Rendered to Buyers from the Appellant’s Portion under CICS Instead of WCS: The appellant paid service tax under the composition scheme of works contract service for amounts received from buyers post 1.6.2007. The show cause notice demanded differential service tax under CICS, arguing that the project commenced before the introduction of service tax on works contracts. The Tribunal cited the Real Value Promoters Ltd. case, which held that post 1.6.2007, composite contracts fall under works contract service and not under CICS. The Tribunal concluded that the demand under CICS for composite contracts post 1.6.2007 was not sustainable. 3. Applicability of Service Tax on Composite Contracts Prior to 1.6.2007: The Tribunal reiterated that service tax on composite contracts (involving both service and supply of goods) was not applicable before 1.6.2007, as established by the Supreme Court in the Larsen & Toubro case. The Tribunal emphasized that only pure service contracts were taxable under CICS prior to 1.6.2007. For the period after 1.6.2007, composite contracts were taxable under works contract service. The Tribunal referenced multiple cases, including Real Value Promoters Ltd. and Vasantha Green Projects, to support this conclusion. Consequently, the demands for service tax under CICS for composite contracts prior to 1.6.2007 were set aside. Conclusion: The Tribunal concluded that the demand of service tax under commercial or industrial construction service (CICS) for the period prior to 1.6.2007 was not sustainable based on the Supreme Court decision in Larsen & Toubro Ltd. For the period after 1.6.2007, composite contracts were taxable under works contract service, and the demand under CICS was not applicable. The impugned order was set aside, and the appeal was allowed with consequential relief.
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