TaxTMI 
TaxTMI 
2017 (6) TMI 224
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....charge on which tax liability was not being discharged for the period from 1st May 2006 to 31st May 2007. It appears that M/s Phoenix Mills Ltd had been paying tax with effect from 1st June 2007 as provider of 'renting of immoveable property service' but not for the period aforesaid that tax authorities assert was required to as provider of 'business support service.' Further, though they had been discharging liability as provider of 'maintenance and repair service' on certain other receipts, it was alleged that there was a short-payment for the period from 1st October 2005 to 31st May 2007. The tax liability was computed at Rs. 1,95,22,592/- and Rs. 7,85,340/- respectively. This demand of Rs. 2,03,07,932/- was confirmed....
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..... The payment of these taxes was well within the knowledge of the tax authorities from the date of filing of the first return after the introduction of the tax; there is no scope, therefore, for invoking the extended period to demand the tax from May 2006 onwards. 5. On merits too, we are constrained to note that the proceedings have been misdirected to culminate in confirmation of the demand and imposition of penalty. The jurisdictional tax authorities have not objected to the subsequent discharge of tax liability as provider of 'renting of immovable property service.' The appellant has constructed a multi-storey mall and allotted built-up space to various lessees. The consideration earned therefrom are split up into various heads....
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....irected is apparent from the observation of the adjudicating authority that :- '22. ... .... It is seen that all along the assessee is giving undue and unwarranted emphasis on the classification of service. The notice per se is not about classification of service, it is about providing of service and receipt of money in lieu thereof and paying service tax on such money. In fact it is the only significant aspect of the issue. As already stated the moment activity of providing service takes place service tax liability follows. Under which category it would fit into, i.e. whether, under business support service, maintenance repair service or under renting of immovable property is a secondary aspect. Nevertheless the arguments put forth by....
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.... Though both do assert that the appellant has discharged a major portion of the tax liability on the consideration received as maintenance charges, at no stage has the appellant made a reference to this concession in its defence. It would, therefore, appear that the tax authorities have dealt with an aspect that has nothing to do with recoveries from lessees as 'maintenance charges'. Indeed, the appellant draws attention to the discharge of tax liability with effect from 1st June 2007 on such receipts, too, as consideration for rendering of 'renting of immovable property service.' From a description of the purpose of collection of these charges, it would appear that these have no link with maintenance and repairs but, on the....