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TMI Blog2016 (3) TMI 832X X X X Extracts X X X X X X X X Extracts X X X X ..... ecution of works contract. The Indian Institute of Technology - Respondent No.4 (for short herein after referred as "Institute"), is a body incorporated by the Institutes of Technology Act, 1961. The Institute appointed National Building Construction Corporation Limited (in short, NBCC) (respondent No.3) as a consultant for construction of its academic building project at Bihta, Patna. The petitioner was appointed as contractor for construction of academic complex of Indian Institute of Technology, Bihta, by NBCC vide letter of award, dated 20th December, 2012. The relevant extract for the purpose of this writ petition, from the letter of award reads as under:- "4.2. SALES TAX ON WORKS CONTRACT AND TURNOVER TAX The award of work under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of Technology, respondent no.4, on the construction activity, undertaken by the petitioner. 4. The Government of India has issued Notification No. 25/2012, dated 20th June, 2012, exempting the services mentioned therein from the levy of service tax in exercise of the powers conferred under Section 93 of the Finance Act, 1994. It may also be noticed that Section 66D has been inserted by the Finance Act, 2012 with effect from 1st July, 2012, wherein negative list of the services on which service tax is not payable was inserted. 5. In counter affidavit, the stand of respondent No.1 is that the construction activity is taxable service under the provision of Section 65 of the Finance Act, 1994. It is pointed out that Notification No.25/2012 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom time to time need to be extracted - "65B. Interpretations.- In this Chapter, unless the context otherwise requires,- ................ (31) "local authority" means - (a) a Panchayat as referred to in clause (d) of article 243 of the Constitution; (b) a Municipality as referred to in clause (e) of article 243P of the Constitution; (c) a Municipal Committee and a District Board, legally entitled to, or entrusted by the Government with, the control or management of a municipal or local fund; (d) a Cantonment Board as defined in section 3 of the Cantonments Act, 2006 (41 of 2006); (e) ........" xxxxxx xxxxxxxxxxxx xxxxxxxxx "93. Power to grant exemption from service tax (1) If the Central Government is satisfied that it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ructure or any other original works meant predominantly for use other than for commerce, industry, or any other business or profession; (b) a historical monument, archaeological site or remains of national importance, archaeological excavation, or antiquity specified under the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (24 of 1958); (c) a structure meant predominantly for use as (i) an educational, (ii) a clinical, or (iii) an art or cultural establishment; (d) canal, dam or other irrigation works; (e) pipeline, conduit or plant for (i) water supply (ii) water treatment, or (iii) sewerage treatment or disposal; or (f) residential complex predominantly meant for self-use or the use of their employees or other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... construction on 20th December, 2012. But even before that date on 20th June, 2012, with effect from 1st July, 2012, the services provided to the Government, local authority, or governmental authority by way of construction, erection, commissioning, installation, completion, fitting out, repair, maintenance, renovation, or alteration were exempted from payment of service tax. „Local authority‟ has been defined under Section 65B (31) of the Finance Act, 1994, and the „Governmental Authority‟ is defined in clause 2(s) of the Notification, dated 20th June, 2012. Such clause has been amended by Notification dated 30th January, 2014. 9. It is undisputed that the Indian Institute of Technology, Bihta, Patna, whose academic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use (i) and sub-clause (ii) of Clause 2(s) are independent dis-conjunctive provisions and the expression "90% or more participation by way of equity or control to carry out any function entrusted to a municipality under Article 243W of the Constitution" is related to sub-clause (ii) of Clause 2(s) alone. The clause (i) is followed by ";" and the word "or". Therefore, each of the sub-clauses is independent provision. The condition of 90% or more participation by way of equity or control to carry out any function entrusted to a municipality under Article 243W of the Constitution is relatable to only sub-clause (ii) of Clause 2(s). It means that an authority established by Government should have 90% or more participation by way of equity or co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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