2019 (1) TMI 823 - AT - Service Tax

Classification of services - Renting of immovable property service or not? - appellant rented its property to State Bank of India on lease basis against receipt of monetary consideration - Held that - There are contrary findings in context with the issue by the adjudicating / appellate authority inasmuch as the appellant had vehemently contested that it did not receive any amount from SBI towards rent for letting out the property. Thus for ascertaining the factual aspect, the matter should go back to the original authority for a fresh fact finding with respect to rent amount received by the appellant - appeal allowed by way of remand.

Summary

Issues:
Interpretation of "renting of immovable property service" under Section 65(105)(zzzz) of the Finance Act, 1994 for service tax liability. Dispute over receipt of rent amount by the appellant from State Bank of India. Application of Rule 6 of Service Tax Rules, 1994 and Point of Taxation Rules, 2011. Validity of penalties imposed under Section 77 and 78 of the Finance Act, 1994.

Analysis:
The appeal was filed against an order passed by the Commissioner of Service Tax (Appeals), Mumbai, confirming a service tax demand on the appellant for renting out property to State Bank of India. The department initiated proceedings based on the interpretation that the activity fell under the taxable category of "renting of immovable property service" under Section 65(105)(zzzz) of the Finance Act, 1994. The appellant contested that the rent amount was under litigation and deposited with the court as per court orders, thus not received by them directly. The appellant argued that no service tax liability should arise as they did not receive any consideration for renting out the property.

The Revenue contended that the appellant had received rent during a specific period, making them liable for service tax on the amount received. The Tribunal noted conflicting findings on whether the appellant had actually received rent from State Bank of India. Considering Rule 6 of Service Tax Rules, 1994 and Point of Taxation Rules, 2011, which mandate payment of service tax on receipt of consideration, the Tribunal held that service tax liability cannot be imposed if the appellant did not receive the disputed rent amount. However, due to contradictory findings, the matter was remanded to the original authority for a fresh fact-finding inquiry on the rent amount received by the appellant. The appellant was instructed to cooperate in the process for effective adjudication.

In conclusion, the appeal was allowed by way of remand to the original authority for further investigation into the actual receipt of rent by the appellant. The Tribunal emphasized the need for a factual determination on whether the appellant had indeed received the rent amount from State Bank of India, as this would impact the service tax liability.