TaxTMI 
TaxTMI 
2019 (3) TMI 448
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....abad. 2. Brief facts of the case are that appellant were providing services namely 'Commercial or Industrial Construction Service' and 'Construction of Residential Complex Service' and were registered for payment of service tax and were regularly filing ST-3 returns. During the course of audit of the records of the appellant for the years 2008-09 and 2009-10 it was found by revenue that appellant had constructed building for Manyavar Kanshi Ram Hospital at Greater Noida and did not pay service tax on the said activity. Therefore, revenue took up the matter with the appellant. In reply to the said objection through letter dated 09.08.2011 appellant referred to para-13.2 of the clarification issued on enactment of finance bill 2004 that if c....
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.... it is amply clear that only those construction activities are brought under service tax network which are (i) used, or to be used, primarily for or (ii) occupied, or to be occupied, primarily with; or (iii) engaged, or to be engaged primarily in, commerce or industry, or work intended for commerce or industry. Therefore, they contended, a legal corollary follows that a construction activity that is not primarily used for commerce or industry or is not primarily occupied with commerce or industry or is not primarily engaged in commerce or industry, shall not be treated as taxable service. They further contended that the legislative intent is thus absolutely clear in framing this definition and any building or structure constructed for non c....
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.... be subjected to service tax." The party contended that from the para „13.2‟ of CBEC Circular narrated above, it is evident that the Government has made the legislative intent very clear that such constructions which are for the use of organizations or institutions being established solely for educational, religious, charitable, health, sanitation or philanthropic purposes and are not meant for the purposes of earning profit, are not-taxable, being non-commercial in nature, They contended that it was thus very clear that the public health and charitable activities are non commercial activities and any construction of building or civil and that it was evident from the aforesaid circular which provides that for determining as to ....
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....eral public utility and charitable purposes through a society formed by the Greater Noida Authority namely Greater Noida Chikitsa Samiti registered with the registrar of societies UP. The MOA of the said society clearly shows that the purpose is fully charitable and not commercial. So the construction of the hospital awarded by Greater Noida Authority being of the charitable purposes fall outside the ambit of service tax in terms of Circular No.80/10/2004-S.T. dt.17.09.2004. b) In support of the above contention the appellants rely on following case laws: (i) Modern Engineering Constructions Vs CCE 2018-TIOL-3895-CESTAT-MAD. (ii) Banna Ram Choudhary Vs CCE 2017-TIOL-2405-CESTAT-Del. (iii) Jatan Construction Pvt Ltd. Vs CCE F.O. No. 5....
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....Vs CCE 2017 (51) STR 273 (Tri.- Del.) wherein it was held that a belief which emerges on the basis of circumstances available, leading the assessee not to pay the tax, is required to be held as a bonafide belief. e) thus in the present case when viewed from this angle the board circular as well as the MOA of the society under which the hospital was working are sufficient to constitute a bonafide belief on part of the appellant. f) regarding the allegation in the impugned order that the appellant filled the exempted service column in the ST-3 return as 'N' in place of 'Y', it is submitted that it is only a clerical omission on part of the appellant without any malafide intention. Reliance is placed on: Pushpam Pharmaceuticals Company Vs ....
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....il structure was used or to be used not for the purposes of profit then the same are not taxable. We note that appellant had raised this point and took a categorical stand before the Original Authority that it was possible for revenue to cause inquiry regarding the registration of Manyavar Kanshiram Hospital from concern government authority to know whether the building was being used for the purpose of making profit or not and that revenue did not make such enquiries and issued show cause notice on pure assumption. We note that the Original authority has not dealt with this aspect of onus on revenue to prove that such building was being used for making profit to satisfy the requirement of the said circular issued by the board and the impug....