2017 (4) TMI 1087 - AT - Service Tax

Impugned order set aside for legal flaws, matter remanded for fresh decision, appellants to present evidence.

M/s Delhi Development Authority Versus CST, Delhi

The impugned order was set aside due to serious factual and legal infirmities, including non-examination of crucial issues and non-application of mind. ... Renting of immovable property service - lump-sum lease premium or periodical rent - The main objects of appellant are to promote and secure the development of Delhi according to plan and for that purpose, the appellant shall have the power to acquire, hold, manage and dispose of land and other property, to carry out building, engineering, mining and other operations, to execute works in connection with supply of water and electricity, disposal of sewage and other services and amenities and generally to do anything necessary or expedient for purposes of such development and for purposes incidental thereto Held that: - considering the huge quantum of service tax demand of ₹ 950 crores confirmed against the appellant, we would expect a detailed analysis of factual as well as legal position, before the conclusion was drawn by the Original Authority. The analysis and discussion recorded in the impugned order is rather brief. After reproducing the statutory definitions, the Original Authority has concluded that the appellant is liable to service tax. No analysis was made with break-up figures with reference to commercial or non-commercial property, valuation of taxable service, abatement or exemptions, if any, applicable to the appellant etc. The tax liability has been confirmed against the appellant for receipts w.e.f. 01/06/2007 considering all such receipts under the category “land premia”. As already noted, we are of the view that the impugned order suffers from serious legal and factual infirmities due to non-examination of various relevant facts and also non-consideration of various legal issues before arriving at the tax liability of the appellant. The impugned order as its stand cannot be legally upheld. As already noted, it suffers from serious factual and legal infirmities and non-application of mind, both on the question of determination of tax liability as well as on quantification of such tax liability. Accordingly, we are of the considered opinion that the impugned order has to be set aside and the matter has to go back to the Original Authority for a fresh decision - appeal allowed by way of remand. Issues Involved:1. Tax liability under 'renting of immovable property service'.2. Classification and taxation of income from 'sale of developed land', 'sale of undeveloped land', and 'sale of shops'.3. Applicability of service tax on ground rent.4. Consideration of non-commercial land and vacant land in tax liability.5. Application of extended period for demand and penalties.6. Consideration of payments under Voluntary Compliance Encouragement Scheme (VCES).7. Best judgment assessment under Section 72 of the Finance Act, 1994.8. Non-cooperation and non-submission of documents by the appellant.9. Legal and factual examination of conveyance deeds for freehold land.Detailed Analysis:1. Tax Liability under 'Renting of Immovable Property Service':The appellants were found liable for service tax under the category of 'renting of immovable property service' as per Section 65 (105) (zzzz) of the Finance Act, 1994. The Original Authority confirmed a demand of Rs. 949.70 crores, including penalties under Sections 76, 77, and 78 of the Finance Act, 1994. The appellants contested this liability, arguing that the transactions involved were sales of land and not rentals.2. Classification and Taxation of Income from 'Sale of Developed Land', 'Sale of Undeveloped Land', and 'Sale of Shops':The Original Authority classified the income from 'sale of developed land', 'sale of undeveloped land', and 'sale of shops' under the taxable category of 'renting of immovable property service'. The appellants argued that these transactions were sales and not leases, hence not liable for service tax. The conveyance deeds submitted by the appellants supported their claim that these were sales of freehold ownership rights.3. Applicability of Service Tax on Ground Rent:The appellants contended that ground rent is a statutory charge under the Delhi Development Act, 1957, and not for the use of land. They argued that ground rent for non-commercial land should not be subjected to service tax. The Original Authority did not adequately address this contention.4. Consideration of Non-Commercial Land and Vacant Land in Tax Liability:The appellants argued that a significant portion of the land leased was non-commercial and vacant land, which should not attract service tax. The Original Authority failed to provide a detailed analysis of the commercial or non-commercial nature of the land and the statutory provisions applicable to vacant land prior to 01/07/2010.5. Application of Extended Period for Demand and Penalties:The appellants contested the invocation of the extended period for demand, arguing that they are a government organization and there was no intention to evade tax. The Original Authority concluded that the appellants deliberately contravened provisions of law, but this conclusion was found to be summary and lacking proper examination of the ingredients of the proviso to Section 73 (1) of the Finance Act, 1994.6. Consideration of Payments under Voluntary Compliance Encouragement Scheme (VCES):The appellants had paid Rs. 12.09 crores under VCES, which was not considered in the impugned order. The Original Authority did not examine the payments made under this scheme.7. Best Judgment Assessment under Section 72 of the Finance Act, 1994:The Original Authority invoked Section 72 for best judgment assessment due to the non-submission of relevant documents by the appellants. However, the basis for this assessment was not clearly justified, and the appellants provided detailed break-up figures under various heads of income during the appeal.8. Non-Cooperation and Non-Submission of Documents by the Appellant:The Revenue argued that the appellants did not cooperate or submit required documents, leading to the confirmation of the full demand. The Original Authority proceeded with best judgment assessment based on available records.9. Legal and Factual Examination of Conveyance Deeds for Freehold Land:The appellants submitted conveyance deeds indicating sales of freehold land, not leases. The Original Authority did not adequately examine these documents to determine the correct nature of the transactions and their tax implications.Conclusion:The impugned order was set aside due to serious factual and legal infirmities, including non-examination of crucial issues and non-application of mind. The matter was remanded to the Original Authority for a fresh decision, with instructions to examine all aspects of the demand and provide the appellants with an opportunity to present their case with supporting evidence. The Original Authority was advised to conclude the proceedings within three months.