2018 (6) TMI 671 - AT - Service Tax

Tribunal rules in favor of developers in service tax evasion case, citing works contracts exemption

M/s. Classic Promoters And Developers, M/s. Classic Property Versus The Commissioner of Central Excise and Service Tax

The Tribunal allowed the appeals in a case concerning alleged evasion of service tax on construction of complex services by developers. The appellants' ... Works contract service - Construction of complex services - Composite contracts - Whether the activities undertaken by the appellants were taxable during the relevant time? - Held that:- Going by the ratio of Hon’ble Supreme Court’s decision in the case of CCE vs. Larsen &Toubro [2015 (8) TMI 749 - SUPREME COURT] held that works contract services were taxable only from 1.6.2007. In cases where the appellants do not receive any bookings or advances, the appellants complete the construction and offer the flats for sale. No service element exists. Services rendered by the appellants in the course of construction is a service but to themselves. Therefore, either way no tax can be levied on such activity - appeal allowed - decided in favor of appellant. Issues:Alleged evasion of service tax on construction of complex services; Applicability of service tax on activities undertaken by the appellants; Composite nature of work contracts; Tax liability during the relevant time period.Analysis:1. The appellants, engaged in developing land and constructing buildings for buyers, were alleged to have evaded service tax on construction of complex services. The lower authorities confirmed demands and penalties, which were upheld by the appellate authority through a single order. The primary issue was whether the activities undertaken by the appellants were taxable during the relevant period.2. The appellants argued that their activities fell under works contracts and that works contract services became taxable only from a prospective amendment on 1.6.2007. They cited Supreme Court judgments to support their contention that works contract services were taxable only from 1.6.2007 onwards, and that retrospective imposition of tax was not permissible, as shown in various decisions.3. The appellants further contended that developers came under the service tax net from 1.7.2010 due to specific amendments. They emphasized that even if tax was payable, the actual person conducting the construction work was liable for taxation as per CBEC circulars. The appellants also highlighted a previous decision by the same Commissioner (Appeals) which held that no service tax was leviable during a specific period.4. The Departmental Representative argued that the appellants' activities were taxable under construction of complex services as per relevant circulars and precedents. The representative asserted that the services provided by the appellants were covered under construction of complex services, and that the duty was correctly calculated based on applicable laws and circulars.5. The Tribunal analyzed the nature of the appellants' work contracts, emphasizing the composite nature of the contracts where the appellants engaged various contractors for construction activities. The Tribunal considered the agreements, the absence of individual itemized contracts with buyers, and the absence of a service element in cases where no advances were received. The Tribunal concluded that no tax could be levied on such activities based on the nature of the contracts and relevant legal interpretations.6. The Tribunal noted that a previous decision by the same Commissioner (Appeals) had held that no service tax was leviable during a specific period, citing a CBEC circular that clarified the nature of services provided by sellers in connection with construction activities. The Tribunal found that the appellants' case aligned with the clarification provided in the circular and was supported by Supreme Court decisions and other judgments cited.7. Ultimately, the appeals were allowed, providing consequential reliefs if any, based on the analysis of the nature of the appellants' activities, relevant legal provisions, and precedents cited during the proceedings.