2009 (1) TMI 461 - AT - Service Tax

Tribunal waives pre-deposit for construction activities based on partnership deed interpretation

The Tribunal granted the appellant's request for a waiver of pre-deposit regarding service tax liabilities arising from construction activities, based on ... Construction of Complex Service - The revenue demanded service tax along with interest and penalties from the assessee, a partnership firm, on the ground that it had rendered services under the category of 'Construction of residential complex service' and that it had not declared the same with a deliberate intention to evade the payment of service tax. The assessee contended that one of its partners had brought a land in which the construction was carried out and same was included in property of firm. Hence according to assessee it was not rendering any service to anyone as construction was done for firm itself. Held that - partnership agreement and deed of confirmation prima-facie, belonged to assessee. Thus, the assessee had made out a case for waiver of pre-deposit requirement. Issues:1. Waiver of pre-deposit of amounts under various sections of the Finance Act, 1994.2. Determination of ownership of land for construction activity.3. Interpretation of partnership deed and its implications on service tax liability.Issue 1: Waiver of Pre-depositThe applicant sought a waiver of pre-deposit for various amounts under sections 73(2), 75, 77, and 78 of the Finance Act, 1994, related to service tax liabilities arising from the construction of residential complexes. The liability was based on the alleged intentional evasion of service tax payment by the applicants. The appellant argued that the Adjudicating Authority misdirected itself, claiming that the construction activity was for the partners themselves and not a taxable service. The respondent contended that the construction services were provided to various individuals, making the appellant liable for service tax. The Tribunal considered the arguments and examined the partnership deed to determine ownership of the land and the nature of the construction activity.Issue 2: Ownership of LandThe crucial issue revolved around whether the land on which the construction activity occurred belonged to the partnership firm or not. The Tribunal analyzed the partnership deed, which revealed that the partners formed a firm, and the property rights for construction were confirmed in favor of the appellant. Referring to the Indian Partnership Act, 1932, the Tribunal concluded that the property in question belonged to the appellant based on the partnership agreement and the deed of confirmation. Citing a relevant High Court decision, the Tribunal found in favor of the appellant regarding the ownership of the land for construction activities.Issue 3: Partnership Deed InterpretationThe interpretation of the partnership deed played a significant role in determining the service tax liability of the appellant. The appellant argued that the construction activity was for personal use and not a taxable service, relying on the partnership agreement and the deed of assignment. In contrast, the respondent contended that the construction services were provided to the public, making the appellant liable for service tax. The Tribunal carefully examined the partnership deed, agreements, and relevant legal provisions to ascertain ownership rights and the nature of the construction services provided by the appellant. Ultimately, based on the evidence and legal analysis, the Tribunal granted the appellant's request for a waiver of pre-deposit, staying the recovery of the assessed amounts pending the appeal's disposal.This detailed analysis of the legal judgment provides a comprehensive overview of the issues involved and the Tribunal's decision regarding the waiver of pre-deposit and the ownership of land for construction activities in the context of service tax liabilities.