2019 (3) TMI 979 - HC - Service Tax

Commercial or industrial construction service - construction of Shiv Chatrapati Sports Complex - scope of Section 65(25b) of the Finance Act - whether, user of the stadium area to the extent of 1/3 rd of the total area for commercial purpose would tantamount to 'commercial or industrial construction service' as defined by Section 65 (25)(b) of the Finance Act, 1994? Held that - It is not even the case of the appellant that the stadium is exclusively used for commercial purpose. Relying on materials which indicate that 1/3rd of the area of the stadium can be utilized for commercial purpose, other than sports, the appellant wants us to arrive at a conclusion that construction is commercial construction service as defined under Section 65(25b) of the Finance Act, 1994. No doubt, various rates are specified for different facilities in the sports complex - it is not even the case of the appellant that sports complex is exclusively or even primarily used for commercial purpose. The plain meaning of definition of Commercial or industrial construction service, as can be understood from the definition clause, more particularly, the clarification contained in clauses (i), (ii), (iii) is that the construction ipso facto is not leviable to service tax, but it is only when it is used, or to be used, primarily for commerce or industry or work intended for commerce or industry that service tax can be levied. Thus, it is only that construction which is to be used or primarily to be used for commerce that is subject to levy of service tax. In the present facts, the dominant user of the sports complex is non commercial. The definition uses the words used or to be used primarily for commerce or industry clearly indicating that the user is to be exclusively for commercial purpose or at least it must be primarily for commercial purpose. The definition leaves us in no manner of doubt that if the predominant user of the sports stadium is not commercial, then the same cannot be subjected to levy of service tax - Thus, in the facts of the present case, though an area to the extent of 1/3rd is used for commercial purpose prescribing separate rates for such user, this by itself is not sufficient to attract service tax. Appeal dismissed.

Summary

Issues Involved:

1. Whether the construction of Shiv Chhatrapati Sports Complex qualifies as "commercial or industrial construction" under Section 65(25b) of the Finance Act, 1994.
2. Whether the respondent is liable to pay service tax for the construction services provided at the Shiv Chhatrapati Sports Complex.

Issue-wise Detailed Analysis:

1. Definition of "Commercial or Industrial Construction":

The primary issue revolves around whether the construction of the Shiv Chhatrapati Sports Complex falls under "commercial or industrial construction services" as defined by Section 65(25b) of the Finance Act, 1994. The definition includes various types of construction and allied works, such as glazing, plastering, painting, and repair, which are subject to service tax if they are used primarily for commerce or industry.

2. Ownership and Usage of the Land:

The land on which the stadium is constructed is owned by the Government of Maharashtra, designated for public welfare use, not for residential or commercial purposes. The question was whether using 1/3rd of the stadium area for commercial purposes would classify the entire construction as "commercial or industrial construction."

3. Tribunal's Findings:

The CESTAT ruled that the construction was non-commercial, and thus no service tax was payable. The Tribunal noted that the primary use of the stadium was for sports, a non-commercial activity, even though a portion of the area could be used for commercial purposes.

4. Appellant's Argument:

The appellant argued that the Tribunal erred by not recognizing that 1/3rd of the stadium area was used for commercial purposes. They contended that the construction was for commercial gains, and the contract between the respondent and the Government of Maharashtra indicated that VAT and Service Tax were applicable. The Board's clarifications and the rates specified for different facilities in the sports complex supported their claim that the construction was commercial.

5. Respondent's Argument:

The respondent countered that the stadium's primary use was non-commercial, focusing on sports and public welfare. They referred to the affidavit of the Director of Sports and Youth Services, which stated that the stadium would continue to be used for non-commercial purposes even after the Commonwealth Youth Games. They also cited Board Circulars clarifying that constructions for non-commercial purposes are not taxable.

6. Court's Analysis:

The court examined the definition of "commercial or industrial construction service" and found that the construction must be used primarily for commerce or industry to attract service tax. The dominant use of the sports complex was non-commercial, and the incidental commercial use of 1/3rd of the area did not suffice to classify the entire construction as commercial.

7. Circulars and Affidavit:

The court noted that the Board Circulars and the affidavit from the Director of Sports and Youth Services supported the non-commercial classification. The circulars clarified that constructions primarily for non-commercial purposes are not taxable, and the affidavit confirmed the stadium's non-commercial use.

Conclusion:

The court concluded that the predominant use of the sports complex was non-commercial, and the incidental commercial use did not warrant the levy of service tax. The appeal was dismissed, and the CESTAT's order was upheld, finding no error in their judgment. The court emphasized that the construction's primary use must be commercial to attract service tax, which was not the case here.

Judgment:

The appeal was dismissed with no order as to costs, affirming the CESTAT's decision that the construction of the Shiv Chhatrapati Sports Complex did not qualify as "commercial or industrial construction" under the Finance Act, 1994, and thus, no service tax was payable.