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TMI Blog2020 (6) TMI 279X X X X Extracts X X X X X X X X Extracts X X X X ..... on renting of immovable property used for storage of agricultural produce in the market area - the adjudicating authority has by twisting the legal position has denied the exemption by mentioning Mandi Parished wrongly. Valuation - inclusion of rent received - clubbing of incomes of various Mandi Parishads - HELD THAT:- The adjudicating authority has wrongly clubbed to incomes of various Mandi Parishads to that of appellant s value of rent received. Hence, said amount is also liable to be deducted - Since each Mandi Samiti has its own PAN number and that all the statutory dues like Income tax, House Tax other taxes are deposited separately individually, thus each Samiti is an independent legal entity and should be treated as a separate body - clubbing receipts of all Samitis is not justified and benefit of exemption limits should be given to the appellant. The rent received by appellant qua sheds rented for commercial purpose is liable to service tax. Also, the Proviso to Section 73(1) can be invoked only, where the service tax has not been paid or levied or short paid or short levied, by reason of fraud; or collusion; or willful mis-statement; or suppression of facts; o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he services rendered by M/s KUMS, Haridwar were in the nature of taxable services of renting of immovable property under Section 65(105)(zzzz) and thereafter it was covered under Section 66B of the Act. 2. As per the aforesaid notification threshold limit of exemption was ₹ 4 lakh which was further amended to ₹ 8 lakh and then to ₹ 10 lakh vide Notification No. 4/2007-ST and Notification No. 8/2008-ST respectively. After 01.07.2012 this threshold limit of ₹ 10 lakh has been continued vide new Notification No. 33/2012-ST dated 20.06.2012. Alleging that the said threshold limit stands crossed that department served a show-cause-notice C.No. IV-CE(9)CP/M-I/152/2014 dated 17.09.2014, proposing recovery of ₹ 1748702/- as demand of service tax alongwith interest at appropriate rate and proportionate penalty upon the appellant. 3. We have heard learned Counsel for the appellant who mentioned that M/s Krishi Utpadan Mandi Samiti Haridwar (KUMS Haridwar is an APMC (Agricultural Produce Marketing Committee) created by the State Legislature to help the farmers to access the buyer for their produce at minimum support price declared by the State Govt. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (ii) services in relation to an aircraft or a vessel, inside or outside the precincts of a port or an airport; . (iii) transport of goods or passengers; or . (iv) [any service] other than services covered under clauses (i) to (iii) above, provided to business entities; . (b) services by the Reserve Bank of India; . (c) services by a foreign diplomatic mission located in India; . (d) services relating to agriculture or agricultural produce by way of- (i) agricultural operations directly related to production of any agricultural produce including cultivation, harvesting, threshing, plant protection or [***] testing; . (ii) supply of farm labour; . (iii) processes carried out at an agricultural farm including tending, pruning, cutting, harvesting, drying, cleaning, trimming, sun drying, fumigating, curing, sorting, grading, cooling or bulk packaging and such like operations which do not alter the essential characteristics of agricultural produce but make it only marketable for the primary market; (iv) renting or leasing of agro machinery or vacant land with or without a structure incidental to its use; . (v) loading, unloading, p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l be liable to tax e.g. renting of shops or other property. Accordingly, we hold that the appellants are not liable to service tax on renting of immovable property used for storage of agricultural produce in the market area. 5. Hence, the gross rent received w.r.t. activities related to agricultural purposes has to be excluded from the gross value of rent as confirmed by adjudicating authority below. I draw my support from decision of this Tribunal in appellant s own case KUMS Vs. CCE ST, Jaipur 2017 (4) GSTL 346 (Tri. Del) wherein it was held. Agricultural Produce Marketing Committee - Service Tax in respect of shed/shop/premises leased out to traders/others for storage of agricultural produce in marketing area not payable, with introduction of Negative List Regime of Taxation w.e.f. 1-7-2012 - However, Negative List not covers activities of renting of immovable property for other than agricultural produce. [paras 10, 11, 12, 13] 6. Now coming to issue of aggregate value mentioned in the impugned notification. I find that this notification was effective upto 30.06.12 and thereafter the SSI exemption was continued vide Notification 33/2012-ST dated 20.06.12. I f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artment has to establish mutuality of interest of flowback of funds else clearances of different units cannot be clubbed together for ascertaining the SSI exemption benefit. Since each Mandi Samiti has its own PAN number and that all the statutory dues like Income tax, House Tax other taxes are deposited separately individually, thus each Samiti is an independent legal entity and should be treated as a separate body. In view of foregoing discussions and judicial pronouncements, I hold that clubbing receipts of all Samitis is not justified and benefit of exemption limits should be given to the appellant. 9. In view of entire above discussion it becomes clear that the rent received by appellant qua sheds rented for commercial purpose is liable to service tax. Also I opine Proviso to Section 73(1) can be invoked only, where the service tax has not been paid or levied or short paid or short levied, by reason of fraud; or collusion; or willful mis-statement; or suppression of facts; or contravention of any of the provisions of Chapter V of Finance Act, 1994 or rules made thereunder with intent to evade payment of service tax by the person chargeable with service tax. If any one o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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