TaxTMI 
TaxTMI 
2018 (6) TMI 802
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....Services and during the period 2007-08 they entered into agreement dated 4.4.2007 and 4.8.2007 with Acharya Kundkund Educational Society, Aligarh and Mangalayatan University, Baiswan, Aligarh respectively for construction of multi-stories Girls' Hostel including all development alonwith other development work. The Education Society is incorporated with the social welfare object whereas the University is promoted by the society, which is a charitable Society/Trust. 2. Later on the Appellant filed a refund claim of service tax amounting to Rs. 28,51,165/- on 23.06.2011 on the ground that the construction activities were undertaken by them in relation to construction of multi-stories Girls' Hostel for the university, which was not meant for....
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.... 30.9.2010 issued by the society/university, which were produced by the appellant simply advice the appellant to revise their bills and these nowhere suggest that that the appellants have refunded them the element of service tax received during the course of rendering the taxable service. The Commissioner (Appeals) also observed that the appellants have not brought on record their sale invoices, bank statement or any other documentary evidence that they have not collected the element of service tax from their service recipient. They have merely brought on record the certificate of chartered accountant which is not sufficient. 4. We have heard the advocate for the Appellant and ld. AR for the respondent and perused the record. The ld. AR ....
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....industry, or work intended for commerce or industry, but does not include such services provided in respect of roads, airports, transport terminals, bridges, tunnels and dams; From the above definition it is clear that the construction activity carried out or intended to be carry out primarily for 'commerce' or 'industry' are alone taxable. Therefore construction of the building which is 'primarily' or 'mainly' used or to be used for commercial purpose can only come within the ambit of 'Commercial or industrial construction service'. 5. Ld. Advocate for the Appellant drew our attention to the Circular No.80/10/2004-ST dated 17.9.2004 whereby scope of Commercial or Industrial Services has been clarified as under:- "13. Construction ....
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....poses and not for the purposes of profit are not taxable, being non-commercial in nature. Generally, government buildings or civil constructions are used for residential, office purposes or for providing civic amenities. Thus, normally government constructions would not be taxable. However, if such constructions are for commercial purposes like local government bodies getting shops constructed for letting them out, such activity would be commercial and builders would be subjected to service tax. 6. The ld. Advocate for the Appellant submitted that the university/society, for which the appellant undertook construction activity, are non-commercial entities solely for charitable educational purposes for common people and the balance sheets ....