2023 (4) TMI 7 - AT - Service Tax

Appellant disputes sales tax, claims sub-leasing in construction service, Tribunal orders reevaluation.

M/s. Supertech Infrastructure Private Limited Versus Commissioner of Customs, Central Excise & Service Tax Commissionerate, Dehradun

The appellant challenged an order confirming a demand under the 'commercial or industrial construction' service and imposition of a penalty. The appellant ... Levy of service tax - penalty - commercial or industrial construction service - Short payment of interest on late payment of Service Tax - Service Tax on freight and cartage - Service Tax on legal services under reverse charge - Incorrect credit as invoices not in the name of service provider - Excess abatement on mandap keeper service - Service Tax on renting of immovable property service - Service Tax on grid electricity billing, common area maintenance & back up electricity charges under BSS - Credit demand @6% of the value of exempted service in the nature of sale of plots, under Rule 6(3) of Credit Rules - Wrong exemption under CICS due to invalid completion certificate - Service Tax due to difference in taxable value of renting service in ST-3 return - Late fee due to non-filing of ST-3 return. HELD THAT:- It is seen that both the issues now sought to be raised by the learned counsel for the appellant were not raised before the Commissioner. It would not be appropriate for the Tribunal to examine these issues in the first instance. The matter would, therefore, have to be remitted to the Commissioner to examine these issues. Appeal disposed off. Issues:Challenge to order confirming demand under 'commercial or industrial construction' service and imposition of penalty.Analysis:The appellant challenged the order confirming a demand of Rs.3,30,09,780 under the 'commercial or industrial construction' service as defined in the Finance Act, 1994. The appellant contended that no sale was involved, as evidenced by a lease deed executed with specific clauses prohibiting sale or transfer. The appellant argued that even if services were provided, they should be classified as a works contract, not under 'commercial or industrial construction.' An application was filed to introduce additional documents and grounds, which were allowed by the Tribunal. These new grounds were related to the nature of sub-leasing and the absence of intent to sell shops to third parties. The Tribunal decided that these new issues should be examined by the Commissioner, granting the appellant the opportunity to present all relevant documents and raise permitted grounds before the Commissioner. The Commissioner was directed to reevaluate the case, including the imposition of penalty, without influence from the Tribunal's observations.This judgment highlights the appellant's challenge against the demand under the 'commercial or industrial construction' service and the subsequent penalty imposition. The appellant argued that the transactions were not sales but sub-leases, supported by clauses in the lease deed restricting sale or transfer. The Tribunal allowed the introduction of additional documents and grounds related to sub-leasing and lack of intent to sell, directing the Commissioner to reexamine the case. The Commissioner was instructed to consider all new evidence and arguments presented by the appellant, including the issue of penalty, in making a fresh decision.