2020 (3) TMI 577 - AT - Service Tax

Appellant not liable for service tax on construction services. Order set aside. Penalties nullified.

The Tribunal held that the appellant was not liable to pay service tax under the category of 'construction of complex' services for the period in ... Construction of complex services - work undertaken by the appellant for the Bhopal Development Authority for construction of 489 EWS quarters at Vinayak Nagar - period April, 2012 to 31 March, 2013 - Demand of service tax with interest and penalty - HELD THAT:- A complex may have a building having more than twelve residential units or a complex may have more than one building each having more than twelve residential units. Independent buildings having twelve or less than twelve residential units would not be covered by the definition of “residential complex” - In the present case, the appellant had constructed independent buildings having one residential unit only. Thus, even if the appellant had constructed more than 12 independent buildings, the nature of activity would not be “construction of complex” and, therefore, the service tax could be levied. The appellant has not constructed a residential complex having more than 12 residential units. It has constructed independent buildings having one residential unit - The decisions of the Tribunal in MACRO MARVEL PROJECTS LTD. VERSUS COMMR. OF SERVICE TAX, CHENNAI [2008 (9) TMI 80 - CESTAT, CHENNAI] and AS SIKARWAR VERSUS COMMISSIONER OF CENTRAL EXCISE, INDORE [2012 (11) TMI 1000 - CESTAT, NEW DELHI] clearly apply to the facts of the present case, where it was held that service tax can be demanded under section 65(105)(zzzh) only if the building concerned has more than 12 residential units in the building and such levy will not apply in cases where in one compound has many buildings, each having not more than 12 residential units. The definition of “construction of complex” and a “residential complex” continue to remain the same after 1 July, 2012 and, therefore, service tax liability could not have been fastened even after 1 July, 2012 under “construction of complex” - The levy of service tax on the appellant under ‘construction of complex service’ is, therefore, not justified and, cannot be sustained. The order confirming the demand of service tax under “construction of complex services” is set aside - Appeal allowed - decided in favor of appellant. Issues Involved:1. Liability of service tax under the category of 'construction of complex' services.2. Levy of penalty and interest.3. Invocation of the extended period of limitation.Issue-wise Detailed Analysis:1. Liability of Service Tax under 'Construction of Complex' Services:The primary issue in this appeal was whether the appellant was liable to pay service tax for the construction of 489 EWS quarters at Vinayak Nagar, Bhopal for the period 1 April 2012 to 31 March 2013 under the category of 'construction of complex' services as defined under section 65 (30a) of the Finance Act, 1994. The appellant contended that the buildings constructed did not have more than 12 residential units, which is a prerequisite for being classified as a 'residential complex' under section 65(91a) of the Finance Act. The Tribunal referred to the definition of 'construction of complex' and 'residential complex' and concluded that independent buildings having twelve or fewer residential units do not fall under the definition of 'residential complex.' Citing previous judgments, such as Macro Marvel Projects Ltd. v. Commissioner of Service Tax, Chennai, and A.S. Sikarwar vs. Commissioner of Central Excise, Indore, the Tribunal held that the appellant's activity did not qualify as 'construction of complex' and thus was not liable for service tax. The Tribunal rejected the Principal Commissioner's reasoning and reliance on the Madhukar Mittal case, stating it was misplaced.2. Levy of Penalty and Interest:The appellant argued that the Principal Commissioner could not have levied penalty and interest. Given that the primary demand for service tax was set aside, the Tribunal did not find it necessary to delve deeply into the issue of penalty and interest. The setting aside of the service tax demand inherently nullified the associated penalties and interest.3. Invocation of the Extended Period of Limitation:The appellant contended that the extended period of limitation could not have been invoked in this case. Since the Tribunal concluded that no service tax was payable under the 'construction of complex' services, the question of invoking the extended period of limitation became moot. The Tribunal did not provide a detailed analysis on this issue, as the primary demand itself was not sustainable.Conclusion:The Tribunal concluded that the appellant was not liable to pay service tax under 'construction of complex' services for the period in question. Consequently, the order confirming the demand of service tax was set aside, and the appeal was allowed. The Tribunal's decision was based on the interpretation of the definitions of 'construction of complex' and 'residential complex' under the Finance Act, supported by previous judicial precedents. The associated penalties and interest were also nullified as a result of the primary demand being set aside.