2025 (10) TMI 615 - AT - Service Tax

Construction-of-residential-complex services 2005-2008 not taxable as mere services; works-contract tax from 01.06.2007, immovable transfer taxable from 01.07.2010

CESTAT CHENNAI - AT allowed the appeal and set aside the impugned order, holding that construction-of-residential-complex services rendered June ... Levy of service tax - composite services of Works Contract Service, Construction of Residential Complex Service and Architecture Service’ Construction of Residential Complex Service - suppression of facts or not - extended period of limitation - Interest and penalty - HELD THAT:- The issue during the said period is no longer res integra. The issue of work contract was examined in detail by a Coordinate Bench of this Tribunal in the case of M/s. RPP Infra Projects Ltd. Vs Commissioner of GST & Central Excise [2024 (5) TMI 1575 - CESTAT CHENNAI] where it was held that 'Composite contracts involving supply of goods and services are taxable only under works contract service from 01.06.2007.' The services of Construction of Residential Complex Service rendered by the appellant during the period from June 2005 to March 2008 in the impugned case not being service simpliciter is not exigible to Service Tax. Further even otherwise works contracts involving transfer of immovable property were brought within the purview of the taxable service by adding Explanation to Section 65(105) (zzzh) with effect from 01.07.2010 only and therefore such contracts were not covered by Section 65(105) (zzzh) during the period prior to 01.07.2010. Interest and penalty - HELD THAT:- Since the issue has been decided in favour of the appellant on merits the question of interest, penalty etc does not arise. The appellant had availed of CENVAT Credit and paid duty during the said period. The appellant has stated that the availment of credit did not result in any financial loss to the Government, but this requires verification just as the excess duty paid needs to be refunded, while determining consequential relief. The impugned order merits to be set aside - Appeal allowed. ISSUES PRESENTED AND CONSIDERED 1. Whether composite contracts (involving both supply of goods and services) relating to construction of residential complexes/works contracts/architecture services rendered during June 2005 to March 2008 are exigible to service tax as 'construction of residential complex service', 'commercial or industrial construction service' or 'works contract service', or fall outside levy because they are not service simpliciter. 2. Whether a developer/promoter was liable to service tax for construction activities prior to 01.07.2010 by virtue of deeming explanations introduced later, i.e., whether transfers/consideration relating to sale of flats/immovable property were taxable as service prior to that date. 3. Whether the appellant's early availment and utilization of CENVAT credit (availing credit prior to actual payment of service charges) during the impugned period constitutes wrongful availment resulting in short payment of service tax or financial loss to the revenue, attracting interest, extended period invocation and penalty. 4. Whether demands for service tax computed under composition schemes (including exclusion/inclusion of land/UDS value) and consequential interest/penalty are sustainable for the impugned period. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Exigibility of service tax on composite construction/works-contract activities (June 2005-March 2008) Legal framework: The statutory scheme distinguishes service simpliciter from composite works contracts; a statutory charging provision specifically bringing works contracts within levy was introduced only with the insertion of a provision for works contract services effective 01.06.2007. Valuation/abatement and optional composition mechanisms for works contracts were introduced contemporaneously. Prior to these enactments, only pure service contracts (service simpliciter) were subject to service tax under specific heads for construction-related services. Precedent treatment: Coordinate benches and higher courts have interpreted the statutory scheme to hold that composite works contracts (containing both supply of goods and services) are liable to tax as works contract only from the date the works-contract charging provision became effective; prior to that date composite contracts could not be taxed as the now-enacted works-contract species. Further, authorities have held that services which are not service simpliciter cannot be taxed under heads intended for pure construction services. Interpretation and reasoning: The Tribunal reasons that where a contract involves both supply of goods and services (i.e., satisfies characteristics of a works contract), it is not a service simpliciter and therefore was not exigible to the heads of construction-related service tax prior to the statutory introduction of works-contract levy. The Tribunal reviews the chronological statutory and administrative developments (abatement notifications, introduction of works-contract definition and composition rules, and subsequent explanations) and concludes that the legal position is that only service simpliciter (not involving supply of goods) was taxable during the impugned period. The Tribunal also notes the subsequent legislative insertion (explanation added with effect from 01.07.2010) deeming certain construction-to-sale transactions as services, and holds that such deeming operated only from that later date and cannot be applied retrospectively to the impugned period. Ratio vs. Obiter: Ratio - Composite contracts involving both goods and services are outside the ambit of the construction-service heads prior to the statutory enactment making works-contract services exigible (01.06.2007 for works-contract levy; additional deeming for developer sales from 01.07.2010). Observations on later circulars/notifications and their impact on long-term contracts are explanatory/confirmatory. Conclusions: Demands of service tax raised for the impugned period (June 2005-March 2008) under construction-of-residential-complex service, commercial/industrial construction service or works-contract service are unsustainable where the contracts were composite (not service simpliciter). Accordingly, the tax demands on those composite contracts for the impugned period must be set aside. Issue 2 - Liability of developer/promoter prior to 01.07.2010 Legal framework: An Explanation deeming construction intended for sale by a builder to be a taxable service was introduced into the definition of certain construction services effective 01.07.2010; prior to that explanation the statutory definitions did not deem the builder's activity to be a service for sale transactions. Precedent treatment: Administrative clarifications and judicial rulings have been examined to determine whether the deeming provision could be invoked for periods before its insertion; tribunals and courts have held that the deeming applies prospectively from the date of insertion and that prior periods are governed by the pre-existing legal position. Interpretation and reasoning: The Tribunal finds that the deeming clause introduced with effect from 01.07.2010 cannot be used to impose liability for periods prior to that date. The Tribunal notes its own earlier order in the appellant's favour for overlapping periods and relies on the established principle that legislative deeming or explanatory provisions are effective only from their date of enactment unless expressly made retrospective. Administrative circulars clarifying classification/option-to-compose are also considered and applied per their temporal effect. Ratio vs. Obiter: Ratio - A developer/promoter is not liable to service tax for construction-for-sale transactions prior to 01.07.2010 under the deeming explanation; such transactions fall outside the taxable heads before the explanation came into force. Conclusions: The appellant, being a developer, had no liability to pay service tax for the impugned period (prior to 01.07.2010) on construction-of-residential-complex/works-contract activities that were composite in nature; the tax demands based on such liability are to be set aside. Issue 3 - Legitimacy and consequence of early availment/utilization of CENVAT credit Legal framework: CENVAT rules allow credit of input/service tax where eligibility conditions are satisfied; wrongful availment or utilization that results in actual loss to revenue may attract recovery, interest and penalty. Extended limitation periods and penal consequences can be invoked where there is evasion or suppression with intent. Precedent treatment: Authorities have treated wrongful availment differently depending on whether there was actual loss to revenue, the availability of eligible credit, and the taxpayer's intention. Administrative verification is required to determine financial impact. Interpretation and reasoning: The Tribunal observes that the appellant availed CENVAT credit shortly before actual payment of service charges but asserts that, at the time of utilization, sufficient eligible credit existed and there was no financial loss to the revenue. The Tribunal holds that early availment, if purely procedural and not causing financial loss, does not constitute substantive wrongful availment warranting penalty or extended limitation. However, the Tribunal directs verification of factual assertions (whether availment caused loss and whether excess duty was paid) when determining consequential relief, indicating that factual findings on financial impact are necessary before denying refund or imposing consequences. Ratio vs. Obiter: Mixed - The statement that mere procedural early availment without financial loss does not amount to violation is part-ratio where factually established; the direction for verification of financial impact is procedural/administrative (not an adjudicative determination on merits). Conclusions: Interest and penalty cannot be sustained where the primary tax demand is set aside; where CENVAT availment is asserted as not causing revenue loss, verification is required before any recovery/refund adjustments are made. The Tribunal remits factual verification on CENVAT utilisation and excess duty payment for consequential relief determination. Issue 4 - Composition scheme valuation issues (inclusion/exclusion of land/UDS value) and consequential demands Legal framework: Composition schemes for works contracts prescribed a rate on gross amounts with specified rules on valuation; administrative clarifications addressed eligibility and applicability for long-term contracts and contracts where payments/tax were made before a scheme's introduction. Precedent treatment: Administrative circulars and judicial decisions clarify that once a contract/payment history or prior classification prevents opting into composition for a contract, composition benefits cannot be applied retrospectively; also, whether land/UDS value is includible depends on the nature of the contract and the relevant notification/rule during the period in question. Interpretation and reasoning: Because the Tribunal has found that the impugned construction activities during the period were not exigible to service tax as composite contracts, demands premised on composition-scheme valuation (including inclusion or exclusion of land/UDS) fall away. The Tribunal further notes that earlier positions on abatement and valuation were litigated and that where the primary tax demand is invalid, consequential valuation adjustments under composition rules do not sustain independent demands. Ratio vs. Obiter: Ratio - Valuation-based demands under composition schemes cannot survive when the foundational tax liability for the period is invalid; directions regarding allocation/inclusion of land value are consequential and dependent on primary conclusion. Conclusions: Demands based on composition-scheme computations (including alleged exclusion of land/UDS leading to short payment) are not maintainable for the impugned period once the underlying taxability is negated; related interest and penalty therefore do not arise. Disposition and consequential directions The Tribunal sets aside the impugned order, allows the appeal and grants consequential relief to the appellant. The Tribunal directs factual verification concerning CENVAT credit availment and any excess duty paid to determine refunds or adjustments, but holds that interest and penalty cannot be levied where the primary demand is quashed. The appeal is disposed on these terms.