TaxTMI 
TaxTMI 
2014 (2) TMI 1001
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....evenue's appeal (the latter, against the order refusing to impose penalty). 3. Brief facts of the case are that appellant was engaged in the management of cars/scooter parking facilities at Indira Gandhi International Airport, New Delhi. This was through an agreement dated 07.11.2003 with Airports Authority of India (AAI) for management of computerized car parking facilities at various locations of International Cargo Complex, IGI Airport, New Delhi and the other agreement dated 01.06.2004 for management of car parking facilities at Jaipur. The activities, according to the Service tax authorities, were taxable services with effect from 10.09.2004. The respondents investigated into the issue, and became aware of the two agreements. It alleged that providing the car parking facility is covered under Airport Service as defined under Section 65 (105) (zzm) of the Finance Act, and accordingly Show Cause Notice was issued on 24.12.2007 by Commissioner Service Tax, Delhi demanding the Service Tax amounting to Rs. 1,93,55,142/- alongwith interest and also proposing penalties under Section 76, 77 and 78 of the Finance Act. The said Show Cause Notice was confirmed by the Commissioner vide....
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....ansfers, airport admission ticketing, etc. clearly fell within the sweep of "airport service" as to be taxable. Besides, argued the counsel, the assessee did not dispute the tax liability in this case; it merely contended that the revenue could not have invoked the extended period of limitation under Section 73, since, according to it, there was no wilful suppression of fact. Applicable law 7. Section 65 (105) was amended with effect from 10.09.2004. It inter alia, included, in the description of "taxable services", airport services, by introduction of clause (zzm), which read as follows: "(zzm) to any person, by airports authority or by any other person, in any airport or a civil enclave: 8. The amendment made with effect from 01.06.2007, introduced "renting immovable properties" as a taxable service, by including clause (zzzz) - to Section 65 (105). As to what is renting of immovable property was defined in Section 65 (90a), which read as follows: "Section 65 "...(90a): "renting of immovable property" includes renting, letting, leasing, licensing or other similar arrangements of immovable property for use in the course or furtherance of business or commerc....
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....y for use in the course or furtherance of business or commerce and partly for residential or any other purposes shall be deemed to be immovable property for use in the course or furtherance of business or commerce." 10. After the above amendment, in 2010, a proviso was added to Section 65 (105) (zzm); it reads as follows: "Provided that the provisions of section 65A shall not apply to any service when the same is rendered wholly within the airport or civil enclave;" 11. In Flemingo (supra), the Court dealt with the same issue, i.e taxability of certain services provided in airport prior to 01.06.2007 in the context of the revenue's contention that "airport service" was taxable, by virtue of Section 65 (105) (zzm) with effect from 10.09.2004. Repelling the revenue's contention, the Division Bench held that the services prior to 2007 were not taxable, and observed as follows: "4. The counsel for the respondent no.3 DIAL has contended that the facts of the present petition are similar to those of W.P.(C) No.4653/2011, 7625/2011, 8254/2011, 8258/2011, 469/2012, 7144/2011 & 7145/2011 allowed by this Court vide order dated 17th July, 2012. 5. We have perused the said order....
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....vice tax, as the activity of letting out premises is not rendering a service." 13. The common order in W.P.(C) No.4653/2011, 7625/2011, 8254/2011, 8258/2011, 469/2012, 7144/2011 & 7145/2011 allowed by this Court by order dated 17th July, 2012 also referred to parking, as in the present case. Consequently, by authority of precedent, this Court holds that parking in airports was not a taxable service at the relevant time, i.e. 10.09.2004 to 01.06.2007. 14. This Court is further of the opinion that the revenue's attempt to tax parking for the concerned period cannot succeed, for the following reasons. Renting immovable became a taxable service, with effect from 01.06.2007, with introduction of Section 65 (105) (zzzz). The seemingly wide import of the expression "renting" which includes licensing, and other arrangements that do not create any interest in the property, is apparent from a reading of the definition of "renting of immovable property". Matters, however, did not rest there; Parliament clarified - by Explanation (1) (v) (c) to Section 65 (105) (zzzz) that parking is not a taxable services, and excluded from it (by stating that such activity would not be included). That ....