2019 (8) TMI 489 - AT - Service Tax

Management Maintenance Repairs Services - tripartite agreement - HELD THAT - It emerges through proceedings that the amount on which service tax is confirmed is such amount which has not been received by the appellant and the said amount is shown in the books of account as receivable. The receivable amount till not received cannot be treated as consideration particularly when such amount is not receivable on account of issue of any invoice - Appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Whether amounts receivable by the appellant should be treated as consideration for maintenance and repair services provided.
2. Validity of service tax demand raised on the appellant.
3. Imposition of penalty by the Original Authority and confirmation by the Commissioner (Appeals).

Analysis:

Issue 1:
The case involved the provision of 'Management Maintenance & Repairs Services' by the appellant to flat owners in residential complexes. The appellant had a tripartite agreement with the flat owners and the builders, where a security deposit towards maintenance and repairs was collected by the builder. The Revenue contended that the amounts receivable by the appellant should be considered as consideration for the services provided. However, the Tribunal noted that the receivable amount, which had not been received by the appellant and was shown in the books as receivable, cannot be treated as consideration, especially when no invoice was issued for such amounts. Therefore, the Tribunal held that the receivable amount cannot be considered as part of the consideration for the services provided.

Issue 2:
The Revenue initiated proceedings against the appellant through a show cause notice, raising a service tax demand of ?34 lakhs. The Original Authority confirmed the demand and imposed a penalty, which was upheld by the Commissioner (Appeals). However, the Tribunal found that the confirmed service tax amount was based on the receivable amount, which was not received by the appellant and was not invoiced. As a result, the Tribunal set aside the impugned order, stating that there was no merit in the service tax demand raised on the appellant.

Issue 3:
The Original Authority had imposed an equal penalty on the appellant, which was confirmed by the Commissioner (Appeals). However, since the Tribunal found that the service tax demand itself was not sustainable due to the nature of the receivable amounts, it set aside the penalty as well. The Tribunal allowed the appeal filed by the appellant, indicating that the imposition of the penalty was unwarranted in this case.

In conclusion, the Tribunal ruled in favor of the appellant, holding that the amounts receivable by the appellant cannot be considered as part of the consideration for the services provided, especially when such amounts were not received and invoiced. The service tax demand and penalty imposed were set aside, and the appeal was allowed.