2019 (2) TMI 16 - AT - Service Tax

Renting of immovable property service - appellant is an association formed for the purpose of facilitating merchants to store and trade food grains from the demarcated premises - the appellant has received rent from members as well as non-members such as Petrol Bunk, BSNL, Bank, etc. - principles of mutuality - Held that - Tribunal in the appellant s own case in M/S. THE LEIGH BAZAAR MERCHANT S ASSOCIATION LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, SALEM 2018 (8) TMI 254 - CESTAT CHENNAI has decided that the rent collected from members cannot be subject to levy of service tax due to the principle of mutuality - the demand of service tax on the rent received from members cannot sustain. Rent received from non-members - Threshold limit - Held that - The details of rent collected covered by the Show Cause Notice for the year 2011-12 is given - It would go to show that the amount of rent collected from non-members is within the threshold limit of exemption of service tax - the demand of service tax on the rent collected from non-members also cannot sustain. Appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Liability to pay service tax under the category of "Renting of Immovable Property."
2. Applicability of the principle of mutuality of interest in determining tax liability.
3. Threshold limit exemption for service tax on rent collected from non-members.

Analysis:
1. The case involved the liability of the appellants to pay service tax under the category of "Renting of Immovable Property" for the rent amount collected from Commercial Complexes, Shops, etc. The Department issued a Show Cause Notice proposing the demand for service tax, interest, and penalties for a specific period. The Original Authority confirmed the demand, which was upheld by the Commissioner (Appeals), leading to the appeal before the Tribunal.

2. The appellant argued that the services rendered by allowing members to use the premises did not fall under "Renting of Immovable Property Service" due to the principle of mutuality of interest. Citing legal precedents, the appellant contended that in cases of Clubs/Associations and their members, the provider of services and the consumer are considered one entity, exempting such activities from being categorized as a service. The Tribunal, relying on its previous decision and legal principles, held that the demand of service tax on rent received from members cannot sustain and set it aside.

3. Regarding the rent collected from non-members, the appellant claimed that it fell within the threshold limit for service tax exemption. The Tribunal examined the details of rent collected, finding that the amount from non-members was within the exemption limit. Following its earlier decision and the facts presented, the Tribunal concluded that the demand of service tax on rent collected from non-members also could not be sustained and set it aside. The appeal was allowed with consequential reliefs, if any, as per law.

This judgment clarifies the application of the principle of mutuality of interest in determining the tax liability for renting immovable property services and emphasizes the significance of threshold limit exemptions for service tax on rent collected from non-members, providing a comprehensive analysis of the legal arguments presented by both parties.