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TMI Blog2022 (2) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant for such activity prior to 1.7.2010 cannot be subject to levy of service tax even though the lease may extend after the period 1.7.2010. If the appellant received any amount for such lease after 1.7.2010 it may be taxable. However, in the present case, there is no allegation that the appellant has received any rent / consideration after 1.7.2010. This being so, the demand cannot sustain. The issue stands covered by the decision of the Hon'ble High Court of Allahabad in the case of COMMISSIONER OF SERVICE TAX, NOIDA VERSUS M/S GREATER NOIDA DEVELOPMENT AUTHORITY, GREATER NOIDA [ 2015 (10) TMI 296 - ALLAHABAD HIGH COURT] where it was held that Renting of vacant land by way of lease or licence (irrespective of the durati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 65(105)(zzzz) by inserting clause (v) to the definition of immovable property. Moreover, as per Notification No. 36/2010-ST dated 28.6.2010, any amount of advance received for providing taxable service other than services specified under section 65(105)(zzzc) and (zzzz) is exempted from levy of service tax. According to department since the service of renting of immovable property falls under the section 65(105)(zzzz), the advances received by the appellant prior to 1.7.2010 would be subject to levy of service tax. 3. Show Cause Notices were issued proposing to demand the service tax on the amount received by the appellant as rent for leasing vacant land for the period from 5.8.2008 to 20.1.2010. After due process of law, the origina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relied on Notification No. 36/2010-ST to allege that the amount received by them are mere advances and that the said consideration has to be apportioned to future period after 1.7.2010 when the activity of leasing vacant land has become taxable. This view taken by the department is entirely erroneous. When the activity of leasing of vacant land has become taxable only with effect from 1.7.2010, the amount received by the appellant for such activity prior to 1.7.2010 cannot be subject to levy of service tax even though the lease may extend after the period 1.7.2010. If the appellant received any amount for such lease after 1.7.2010 it may be taxable. However, in the present case, there is no allegation that the appellant has received any ren ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amendment which expands the scope of the taxable service; and prospectively. 14. Clause 75 of the Bill (which later came to be enacted as Finance Act, 2010) has proposed insertion of sub-clause (v) in Explanation I in Section 65(105)(zzzz) of the Act. The memorandum explaining the provisions in Finance Bill, 2010 also indicates that the amendments are being made in the definition of 'renting of immovable property' service inter alia levy of service tax on renting of vacant land where there is an agreement between lessor and lessee for undertaking construction of building or structure on such land for furtherance of business or commerce during the tenure of the lease. The C.B.E. C. Board Circular No. 334/2010-TRU, dated 26-2-20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the amendment and insertion of this sub-clause, these transactions covered by this sub-clause of the Explanation have only the prospective operation. 15. On the above analysis, renting of vacant land by way of lease or licence (irrespective of the duration or tenure), for construction of a building or a temporary structure for use at a later stage in furtherance of business or commerce is a taxable service only from 1-7-2010, and not so, earlier to this date. 20. In our opinion the findings recorded by the Tribunal on the aforesaid aspect of the matter are legally justified and we see no good reason to take any different view in the matter. 21. For the aforesaid reasons, the question of law as raised by means of the prese ..... X X X X Extracts X X X X X X X X Extracts X X X X
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