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TMI Blog2017 (6) TMI 224X X X X Extracts X X X X X X X X Extracts X X X X ..... the knowledge of the tax authorities from the date of filing of the first return after the introduction of the tax; there is no scope, therefore, for invoking the extended period to demand the tax from May 2006 onwards. The jurisdictional tax authorities have not objected to the subsequent discharge of tax liability as provider of 'renting of immovable property service - Having accepted the taxability for providing a specific service, it is not open to the tax authorities to claim its share in the form of a levy under a different head merely because 'renting of immovable property service' was not taxable prior to 1st June 2007. Alleged short-payment of tax under the head of 'maintenance or repair service' - Held that: - appellant has discha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of 'renting of immoveable property service' but not for the period aforesaid that tax authorities assert was required to as provider of 'business support service.' Further, though they had been discharging liability as provider of 'maintenance and repair service' on certain other receipts, it was alleged that there was a short-payment for the period from 1st October 2005 to 31st May 2007. The tax liability was computed at ₹ 1,95,22,592/- and ₹ 7,85,340/- respectively. This demand of ₹ 2,03,07,932/- was confirmed by Commissioner (TAR), Mumbai in order-in-original no.16/ST/SB/2012-13 dated 27th September 2012 and M/s Phoenix Mills Ltd is in appeal against the confirmation of tax liability along with int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r invoking the extended period to demand the tax from May 2006 onwards. 5. On merits too, we are constrained to note that the proceedings have been misdirected to culminate in confirmation of the demand and imposition of penalty. The jurisdictional tax authorities have not objected to the subsequent discharge of tax liability as provider of 'renting of immovable property service.' The appellant has constructed a multi-storey mall and allotted built-up space to various lessees. The consideration earned therefrom are split up into various heads but has entirely been treated as rental income for the purposes of discharge of service tax liability. Having accepted the taxability for providing a specific service, it is not open to the ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssification of service. The notice per se is not about classification of service, it is about providing of service and receipt of money in lieu thereof and paying service tax on such money. In fact it is the only significant aspect of the issue. As already stated the moment activity of providing service takes place service tax liability follows. Under which category it would fit into, i.e. whether, under business support service, maintenance repair service or under renting of immovable property is a secondary aspect. Nevertheless the arguments put forth by the assessee revolves around only one contention i.e. equating these charges with rent. The sum of their contentions is that these charges are part and parcel of rent and this argument ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant made a reference to this concession in its defence. It would, therefore, appear that the tax authorities have dealt with an aspect that has nothing to do with recoveries from lessees as 'maintenance charges'. Indeed, the appellant draws attention to the discharge of tax liability with effect from 1st June 2007 on such receipts, too, as consideration for rendering of 'renting of immovable property service.' From a description of the purpose of collection of these charges, it would appear that these have no link with maintenance and repairs but, on the contrary, appeared to be additional charges for common space that would be utilised by the lessees or their customers. It cannot, therefore, be anything but rental income. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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