2017 (5) TMI 673 - AT - Service Tax

Development authority liable for service tax on land allottee charges except one-time premium for 30+ year leases under Section 104

RIICO Ltd., M/s Rajasthan State Industrial Development & Investment Corpn. Ltd. Versus CCE, Jaipur-II

CESTAT New Delhi held that appellant development authority was liable for service tax on certain charges collected from land allottees. One-time premium ... Charges collected by the appellant from the allottees of land - taxability - substantial part of the demand against the appellant in various proceedings, relate to their service tax liability on lump-sum premium amount, received by them from the allottees on allotment of land on long term basis - Held that: - In view of the introduction of new Section 104 in the Finance Act, 1994 the appellant’s liability on such consideration no longer exists. The one time payment received for grant of long term lease of 30 years or more of industrial plot, is not liable to service tax for all the periods covered in the present proceedings. However, we hold that the appellants are liable to pay service tax in respect of such one time amounts received in respect of lease granted for less than 30 years - the appellants are liable to service tax on the premium received on leasing of land for the periods of less than 30 years. Renting of immovable property service - Held that: - Regarding tax liability of the appellant on the economic rent received by them from 01/07/2010, we find that on the similar matter, this Tribunal has examined this very same issue in the case of Greater Noida Industrial Development Authority [2015 (4) TMI 661 - ALLAHABAD HIGH COURT] and upheld the service tax liability on such charges. The said decision of the Tribunal has been upheld by the Hon’ble Allahabad High Court as noted earlier in this order. As such, we hold that the appellants are liable for service tax on the lease rent/economic rent received periodically, on the lands allotted for industrial purpose for the period post 01/07/2010. Management, maintenance and repair services - Held that: - repair and maintenance of roads is exempted from payment of service tax in terms of Section 97 of the Finance Act, 1994. The said exemption has been made applicable from 16/06/2005 upto 26/07/2009. Thereafter exemption Notification 24/2009-ST dated 27/07/2009 and Notification No. 54/2010-ST dated 21/12/2010 are applicable - any charges are collected by the appellants towards repair and maintenance of roads, the same shall not be liable to service tax under the category of management, maintenance and repair service. Charges collected from allottees with reference to provision of various services other than management, maintenance of roads - Held that: - no exemption is available. The claim of the appellant that they have undertaken the said maintenance as a governmental authority and, hence, not liable to tax, is not tenable - appellant are liable service tax for the period prior to 30/01/2004 as no exemption is available to them. Transfer charges as per Rule 18 of RIICO Rules - The Revenue demanded service tax on such charges either under ‘real estate agent service’ or under ‘renting of immovable property service’ - Held that: - the transfer of allotment is enabling the transferee to obtain the land on lease and it is an integral part of lease arrangement. As such, the said consideration is to be considered as a taxable value received for rendering taxable service of renting of immovable property. Wherever demand of service tax on this income is with reference to this tax entry, the appellant is liable to pay. Extended period of limitation - Held that: - the appellants are a Government company. The issues dealt with above are involving interpretation of legal provisions. Some differing views are already on record. As a Government agency it is not incorrect to assume that the appellant did not have any malafide intend to mis-represent or suppress facts from the tax authorities in order to evade the tax - extended period not invoked - demand limited to normal period. Penalties - Held that: - the penalties imposed on the appellant are also liable to be set aside, as there are no malafide intention. Subject to production of evidence that the appellants have charged gross amount which is inclusive of service tax and the arrangement with the service recipient/the documents support such assertion, the appellant should be allowed to calculate the tax liability in terms of the said provision. The core legal questions considered by the Tribunal in these appeals revolve around the service tax liability of a government-promoted company engaged in allotment and leasing of industrial land. The principal issues include:1. Whether the lump sum development charges or premium collected by the appellant on allotment of leasehold industrial land constitute consideration for 'renting of immovable property service' liable to service tax, or whether such charges are akin to sale or transfer of title and thus not taxable as service.2. The applicability of service tax on periodic lease rentals (economic rent) received by the appellant from allottees.3. The taxability of various other charges collected by the appellant such as fire charges, service charges, retention charges, restoration charges, unauthorized construction regularization charges, and transfer charges.4. Whether the appellant, being a government-promoted company performing certain municipal functions, is exempt from service tax under relevant notifications and constitutional provisions.5. The validity of demands raised under the extended period of limitation and imposition of penalties.6. The applicability of valuation provisions, specifically Section 67(2) of the Finance Act, 1994, regarding inclusive service tax in the gross amount charged.Issue-wise Detailed Analysis:1. Taxability of Lump Sum Development Charges/Premium on Leasehold LandLegal Framework and Precedents: The key statutory provisions considered include the definition of 'renting of immovable property' under Section 65(90a) and Section 65(105)(zzzz) of the Finance Act, 1994, and the exclusion of transfer of title from the definition of 'service' under Section 65B(44) effective from 01/07/2012. The Tribunal also examined prior decisions, notably the Greater Noida Industrial Development Authority case, where it was held that premium or salami paid for lease interest is not for continued enjoyment and thus not taxable as renting service. This decision was upheld by the Allahabad High Court.Court's Interpretation and Reasoning: The appellant argued that the lump sum premium is a price for obtaining leasehold interest, akin to sale, and therefore outside the scope of service tax on renting. They relied on the exclusion in Section 65B(44) and the Tribunal's earlier ruling. The Revenue and learned Authorized Representative (AR) contended that the lump sum premium forms part of the consideration for leasing and cannot be separated from periodic rent; thus, it is taxable under renting of immovable property service. The Tribunal noted the legislative amendment by insertion of Section 104 in the Finance Act, 1994 (effective retrospectively from 01/06/2007 to 21/09/2016), which exempts one-time upfront payments for long-term leases (30 years or more) from service tax liability, effectively overruling the earlier judicial position.Application of Law to Facts: The Tribunal held that for leases of 30 years or more, the lump sum premium is exempt from service tax due to Section 104 and Notification 41/2016-ST. However, for leases shorter than 30 years, the premium is taxable as consideration for renting of immovable property service. The Tribunal relied on the Tripura High Court's decision which upheld the taxability of both premium and rent as consideration for lease.Competing Arguments: The appellant's contention that the premium is a capital receipt akin to sale was rejected by the Tribunal, which emphasized the commercial reality of the transaction as a lease with lump sum and periodic payments forming a single consideration. The Revenue's position that no 'deemed sale' or 'virtual sale' concept exists under the Finance Act was accepted.Conclusion: The appellant is liable to pay service tax on lump sum premium for leases under 30 years but exempt for leases of 30 years or more due to statutory amendment.2. Taxability of Periodic Economic RentLegal Framework and Precedents: The Tribunal relied on the definitions under Section 65(90a) and Section 65(105)(zzzz), and the prior decisions including the Greater Noida Industrial Development Authority case and its affirmation by the Allahabad High Court.Court's Interpretation and Reasoning: The Tribunal held that periodic lease rentals constitute consideration for renting of immovable property service and are taxable from 01/07/2010 onwards. The appellant's contention that the entire transaction is a sale and not renting was rejected.Application of Law to Facts: The appellant received economic rent periodically for leased industrial land. This was held to be taxable under renting of immovable property service.Conclusion: Service tax liability on economic rent stands confirmed for the relevant period.3. Taxability of Other Charges (Retention, Restoration, Unauthorized Construction Regularization, Transfer Charges)Legal Framework: The charges are linked to the lease arrangement under RIICO Rules, 1979, including Rule 2(xxxi) defining retention charges and Rule 24(3) regarding restoration. The statutory definitions of taxable services under the Finance Act were applied.Court's Interpretation and Reasoning: The appellant claimed these charges were penal or administrative and not consideration for service. The Tribunal disagreed, holding these charges have direct nexus to the lease and continued enjoyment of the leased property. The charges are thus consideration for renting of immovable property service. Regarding transfer charges, the Tribunal held that the appellant is not a real estate agent but the principal party to the lease, so taxability is under renting of immovable property service, not real estate agent service.Application of Law to Facts: The charges collected directly relate to the lease terms and continued use of the property, making them taxable.Treatment of Competing Arguments: The appellant relied on a decision relating to delayed payment charges by stock brokers, which the Tribunal found inapplicable due to different factual matrix.Conclusion: All such charges are taxable under renting of immovable property service from 01/07/2010 onwards.4. Taxability of Service Charges and Fire Charges under Management, Maintenance and Repair ServiceLegal Framework: Exemptions under Section 97 of the Finance Act, 1994 and Notification 24/2009-ST and 54/2010-ST were considered for repair and maintenance services.Court's Interpretation and Reasoning: Charges specifically for repair and maintenance of roads are exempt. However, other service charges and fire charges collected for upkeep and maintenance of industrial areas are taxable as management, maintenance and repair services. The appellant's claim of exemption as a government authority was rejected for periods prior to 30/01/2014, as the appellant did not meet the definition of 'governmental authority' under Notification 25/2012-ST until that date. Post 30/01/2014, exemption applies based on Ministry of Finance clarification and constitutional provisions under Article 243W relating to municipal functions.Application of Law to Facts: The appellant's corporate status and commercial purpose preclude exemption for services rendered prior to 30/01/2014. The exemption applies only after that date.Conclusion: Service tax is payable on such charges prior to 30/01/2014; exempt thereafter.5. Extended Period of Limitation and PenaltiesLegal Framework: Principles governing extended period of limitation and penalty imposition under service tax laws.Court's Interpretation and Reasoning: The Tribunal found no malafide intent or willful suppression by the appellant, a government company, in discharging service tax obligations. The issues involved legal interpretation with differing judicial views. The retrospective exemption introduced by Finance Act, 2017 supports the appellant's bona fide position. Therefore, demands raised under extended period and penalties imposed are not sustainable.Conclusion: Extended period demands and penalties are set aside.6. Valuation under Section 67(2) of the Finance Act, 1994Legal Framework: Section 67(2) provides for valuation of taxable service when gross amount charged includes service tax.Court's Interpretation and Reasoning: The Tribunal allowed the appellant to apply Section 67(2) for valuation, subject to documentary evidence that the gross amount charged was inclusive of service tax and the arrangement with the service recipient supports this.Conclusion: Valuation under Section 67(2) is permitted subject to proof.Significant Holdings:'The one time payment received for grant of long term lease of 30 years or more of industrial plot, is not liable to service tax for all the periods covered in the present proceedings.''We do not find any justification to consider the one time payment on a different footing when compared to the regular lease rent, received in a periodical manner.''The appellants are liable to service tax on the premium received on leasing of land for the periods of less than 30 years.''The appellants are liable for service tax on the lease rent/economic rent received periodically, on the lands allotted for industrial purpose for the period post 01/07/2010.''Retention charges, restoration charges, unauthorized construction charges/regularization charges and transfer charges are attributable to the lease arrangement and are liable to be taxed under renting of immovable property service.''Charges collected towards repair and maintenance of roads are exempt from service tax; other maintenance and management charges are taxable prior to 30/01/2014.''The appellants are not 'real estate agents' within the meaning of the statute and transfer charges are taxable under renting of immovable property service.''Demands raised under extended period of limitation and penalties imposed on the appellant are not sustainable.''Section 67(2) valuation provisions shall be available to the appellant subject to documentary proof.'The Tribunal's final determinations comprehensively clarify the scope of service tax liability on various charges collected by the appellant in relation to leasing of industrial land, balancing statutory provisions, judicial precedents, and recent legislative amendments. The ruling distinguishes between lump sum payments for long-term leases exempted by statute and other taxable considerations, affirms taxability of periodic rents and ancillary charges, and grants relief on limitation and penalty grounds due to bona fide conduct of the appellant.