2018 (10) TMI 840 - AT - Service Tax

Tribunal Overturns Service Tax Demand for Residential Construction

The Tribunal set aside the order confirming the demand of service tax on the appellant for the period from 16.06.2005 to 31.01.2007 under the category of ... Penalty u/s 78 of FA - non-payment of service tax - Construction of Residential Complex Service - Held that:- The assessee is engaged in the Construction of Residential Complex in terms of the Development Agreements entered with land owners and prospective buyers. The period of dispute is from 16.06.2005 to 31.01.2007. An explanation was added for the Finance Act 2010 in Section 65(105) (zzzh) of the Finance Act 1994 whereby it was clarified that levy of service tax on construction of complex by builder will be taxable only from 01.07.2010 and further the Board vide its Circular dated 10.02.2012 clarified that prior to 01.07.2010 service tax is not chargeable from builders/developer. Prior to 01.07.2010 builders/developers are not liable to pay service tax for the Construction of Residential Complex Service and in the present case, the period involved is from 16.06.2005 to 31.01.2007 - penalty not maintainable. Appeal dismissed - decided against appellant-Revenue. Issues Involved:- Confirmation of demand of service tax on the appellant by the Commissioner- Non-imposition of penalty under Section 78 of the Act challenged by the Revenue- Interpretation of the levy of service tax on construction of residential complex by the builder prior to 01.07.2010Analysis:Confirmation of demand of service tax:The appeal was directed against the De novo order passed by the Commissioner confirming the demand of service tax on the appellant for the period from 16.06.2005 to 31.01.2007 under the category of 'Construction of Residential Complex Service'. The appellant was alleged to have not paid the service tax, leading to a show-cause notice and subsequent adjudication by the Commissioner, resulting in confirmation of the demand along with interest and penalties under Sections 76 and 77 of the Finance Act. The appellant contended that the demand was unsustainable, citing various decisions of the Tribunal and Board circulars to support their argument that the service tax was not leviable during the material period due to the nature of the construction services provided.Non-imposition of penalty under Section 78:The Revenue filed two appeals challenging the non-imposition of penalty under Section 78 of the Act. However, the Tribunal found in favor of the appellant on the main issue of service tax demand, rendering the appeals seeking penalty imposition by the Revenue as not maintainable and subsequently dismissing them.Interpretation of levy of service tax pre-01.07.2010:The Tribunal analyzed the legal framework surrounding the levy of service tax on the construction of residential complexes by builders prior to 01.07.2010. It referred to the Finance Act 2010, which clarified that the service tax on such construction would be taxable only from 01.07.2010. The Tribunal also highlighted relevant Board circulars and decisions of other benches to support its finding that builders and developers were not liable to pay service tax for the construction of residential complexes before 01.07.2010. The Tribunal cited specific cases where the issue had been considered, such as the decision in the case of CCE Vs. U.B. Construction (P) Ltd., Krishna Homes, and Vijay Shanthi Builders Ltd., to establish the non-chargeability of service tax on construction services provided by builders prior to 01.07.2010.In conclusion, the Tribunal set aside the impugned order confirming the demand of service tax on the appellant, allowing the appeal with consequential relief. The appeals filed by the Revenue seeking penalty imposition were dismissed as not maintainable. The judgment provided a detailed analysis of the legal provisions, circulars, and precedent cases to support its decision on the levy of service tax on construction services by builders before 01.07.2010.