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TMI Blog2024 (8) TMI 850X X X X Extracts X X X X X X X X Extracts X X X X ..... r terms.' Admittedly, in this case, the appellant has not recovered any parking charges from the tenants/owners of the shops or their employees. Thus, no Service Tax is payable by the appellant for car parking fees under the category of renting of immovable property service . Therefore, the demand raised against the appellant on car parking charges is set aside - no penalty is imposable on the appellant. The impugned order is set aside - appeal allowed. - HON BLE SHRI ASHOK JINDAL, MEMBER (JUDICIAL) And HON BLE SHRI K. ANPAZHAKAN, MEMBER (TECHNICAL) Shri Saurabh Bagaria, Advocate Shri Indrani Banerjee, Advocate for the Appellant Shri S. Mukhopadhyay, Authorized Representative for the Respondent ORDER Order : [ PER SHRI ASHOK JINDAL ] The appellant is in appeal against the demand of Service tax and imposition of penalty vide the impugned order. 2. The facts of the case are that the appellant is a shopping mall comprising ground plus three storey and house consumer goods shops. The appellant has leased out such shops under agreements for monthly rental, in respect of which the appellant duly pays service tax under the category of renting of immovable property service . The comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Revenue under renting of immovable property service . Therefore, it was argued that service tax is not payable, but the ld. adjudicating authority confirmed the demand vide the impugned order. 5. Aggrieved from the said order, the appellant is before us. 6. The Ld. Counsel appearing on behalf of the appellant submitted that the amount collected as car parking fee is not chargeable to service tax as car parking charges are specifically excluded from the scope of definition of renting of immovable property service . In support of his contention, he relied on the decision of Mahesh Sunny Enterprises P. Ltd. v. Commr. of Service Tax, New Delhi [2014 (34) S.T.R. 21 (Del.)]. 7. On the other hand, Ld. Authorized Representative appearing for the Revenue submitted that in the case of Select Infrastructure Pvt. Ltd. v. Commissioner of Central Excise, Delhi-I [2018 (2) TMI 840 CESTAT, New Delhi] wherein it was held that for the parking charges collected from the owners or employees of the shop who are in business or commerce, the car parking charges are chargeable to tax. 8. Heard the parties and considered their submissions. 9. We find that in this case, the appellant is a Shopping Mall, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and facilities relating thereto; and (iv) in case of a building located in a complex or an industrial estate, all common areas and facilities relating thereto, within such complex or estate (v) but does not include (a) vacant land solely used for agriculture, aquaculture, farming, forestry, animal husbandry, mining purposes, (b) vacant land, whether or not having facilities clearly incidental to the use of such vacant land; (c) land used for educational, sports, circus, entertainment and parking purposes, and (d) building used solely for residential purposes and buildings used for the purposes of accommodation, including hotels, hostels, boarding houses, holiday accommodation, tents, camping facilities, 9.4. On going through the said definition, we find that land used for parking purposes is not chargeable to service tax under the category of renting of immovable property service . 10. The same view was taken by this Tribunal in the case of Mahesh Sunny Enterprises P. Ltd. (supra), wherein it was observed as under: - 15. The above provision, i.e. the Explanation makes it clear beyond any doubt, that Parliament had intended that renting or immovable property was to be taxed, for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facility for which monthly consideration is collected by the appellant along with the rent payable for the said shops and premises. This will assume the nature of renting of immovable property in furtherance of business or commerce. Accordingly, the consideration attributable to such income is llable to be taxed. Admittedly, in this case, the appellant has not recovered any parking charges from the tenants/owners of the shops or their employees. 11. In the case of Brookefields Estates Pvt. Ltd. v. Commissioner of Central Excise Service Tax [Final Order No. 40663 of 2023 dated 10.08.2023 in Service Tax Appeal No. 40814 of 2014 (CESTAT, Chennai)], the Chennai Bench of this Tribunal again examined this issue and observed as under: - 13. Ld. Advocate stressed heavily on the use of vacant in exclusion clauses (a) and (b) and land used in exclusion clause (c) of the definition of RIPS under Section 65(105)(zzzz). It is his contention that the omission to use vacant at (c) above is a conscious omission since here, in the case on hand, such land is used for parking purposes only and hence, they are covered by the non-inclusion clause (c) i.e., land used for parking purposes . 14.1 The imp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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