2019 (3) TMI 979 - HC - Service Tax

CESTAT decision upheld: Shiv Chhatrapati Sports Complex not subject to service tax

The court dismissed the appeal, upholding the CESTAT's decision that the construction of the Shiv Chhatrapati Sports Complex did not qualify as ... Commercial or industrial construction service - leviability of service tax dependent on primary use - predominant/dominant user test - conversion model - change in use not taxable unless conversion falls within definitionCommercial or industrial construction service - leviability of service tax dependent on primary use - predominant/dominant user test - Construction of Shiv Chatrapati Sports Complex is not a 'commercial or industrial construction service' within the meaning of Section 65(25b) of the Finance Act, 1994. - HELD THAT: - The definition of commercial or industrial construction service covers various construction and allied activities but makes leviability contingent upon the building or civil structure being 'used, or to be used, primarily for', 'occupied, or to be occupied, primarily with', or 'engaged, or to be engaged, primarily in' commerce or industry. The statutory language requires that the construction be primarily or predominantly for commercial/industrial use for service tax to attach. The plot is government owned and intended for public welfare; the record shows the dominant user of the sports complex is non commercial. The fact that up to one third of the area may be permitted for commercial use, and that separate rates are specified for certain usages, does not establish that the stadium is exclusively or primarily used for commercial purposes. Board circulars relied on by the Revenue support the proposition that mere incidental commercial use or charging for certain usages does not convert a predominantly non commercial government construction into a taxable commercial construction. On these findings the Tribunal's conclusion that the construction is non commercial is neither perverse nor vitiated by an error apparent on the face of the record, and interference is not warranted. [Paras 15, 16, 17, 18, 19]Tribunal's finding that the construction is not a commercial or industrial construction service is upheld; service tax is not leviable on the construction.Final Conclusion: Appeal dismissed; CESTAT's order holding the construction non commercial and not subject to service tax is upheld (no order as to costs). Issues Involved:1. Whether the construction of Shiv Chhatrapati Sports Complex qualifies as 'commercial or industrial construction' under Section 65(25b) of the Finance Act, 1994.2. Whether the respondent is liable to pay service tax for the construction services provided at the Shiv Chhatrapati Sports Complex.Issue-wise Detailed Analysis:1. Definition of 'Commercial or Industrial Construction':The primary issue revolves around whether the construction of the Shiv Chhatrapati Sports Complex falls under 'commercial or industrial construction services' as defined by Section 65(25b) of the Finance Act, 1994. The definition includes various types of construction and allied works, such as glazing, plastering, painting, and repair, which are subject to service tax if they are used primarily for commerce or industry.2. Ownership and Usage of the Land:The land on which the stadium is constructed is owned by the Government of Maharashtra, designated for public welfare use, not for residential or commercial purposes. The question was whether using 1/3rd of the stadium area for commercial purposes would classify the entire construction as 'commercial or industrial construction.'3. Tribunal's Findings:The CESTAT ruled that the construction was non-commercial, and thus no service tax was payable. The Tribunal noted that the primary use of the stadium was for sports, a non-commercial activity, even though a portion of the area could be used for commercial purposes.4. Appellant's Argument:The appellant argued that the Tribunal erred by not recognizing that 1/3rd of the stadium area was used for commercial purposes. They contended that the construction was for commercial gains, and the contract between the respondent and the Government of Maharashtra indicated that VAT and Service Tax were applicable. The Board's clarifications and the rates specified for different facilities in the sports complex supported their claim that the construction was commercial.5. Respondent's Argument:The respondent countered that the stadium's primary use was non-commercial, focusing on sports and public welfare. They referred to the affidavit of the Director of Sports and Youth Services, which stated that the stadium would continue to be used for non-commercial purposes even after the Commonwealth Youth Games. They also cited Board Circulars clarifying that constructions for non-commercial purposes are not taxable.6. Court's Analysis:The court examined the definition of 'commercial or industrial construction service' and found that the construction must be used primarily for commerce or industry to attract service tax. The dominant use of the sports complex was non-commercial, and the incidental commercial use of 1/3rd of the area did not suffice to classify the entire construction as commercial.7. Circulars and Affidavit:The court noted that the Board Circulars and the affidavit from the Director of Sports and Youth Services supported the non-commercial classification. The circulars clarified that constructions primarily for non-commercial purposes are not taxable, and the affidavit confirmed the stadium's non-commercial use.Conclusion:The court concluded that the predominant use of the sports complex was non-commercial, and the incidental commercial use did not warrant the levy of service tax. The appeal was dismissed, and the CESTAT's order was upheld, finding no error in their judgment. The court emphasized that the construction's primary use must be commercial to attract service tax, which was not the case here.Judgment:The appeal was dismissed with no order as to costs, affirming the CESTAT's decision that the construction of the Shiv Chhatrapati Sports Complex did not qualify as 'commercial or industrial construction' under the Finance Act, 1994, and thus, no service tax was payable.