2019 (3) TMI 1182

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....etails are M/s Prasad Media Corporation Limited (PMCL) the appellant herein, were registered with the tax department for providing and discharging the service tax liability under the categories of sale of space or time for development service and renting of immovable property service, management, maintenance or repair services. During the course of audit conducted of the account of PMCL it was noticed that they have short paid service tax on the amounts received towards the letting and licensing of premises for outside parties for renting food courts and for entertainment zones under Revenue share basis. It is the case in the show cause notice, that as per agreement dated 05.09.2009 with one of the persons, appellant let out an area for run....

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....earing for PMCL submits that the agreements entered by the appellant with M/s Hotel Kamal Pvt. Ltd., and M/s Harsha Hospitalities Pvt. Ltd., were on the basis of Revenue share and cannot be considered as renting of immovable properties. He would submit that the agreements clearly indicate sharing of the income from the food court, the guaranteed minimum monthly amount in order to make the said M/s Hotel Kamal Pvt. Ltd., & M/s Harsha Hospitalities Pvt. Ltd., seriously run the food court profitable; that the issue of taxability of an amount in revenue sharing is covered under the renting of immovable property or not, the Tribunal in the case of Ambience Hospitality P. Ltd., [2019 (21) G.S.T.L. 400] has come to a conclusion that such amount is....

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..... On careful consideration of submissions made by both sides, we find that as regards the demand of service tax under renting of immovable property based upon the agreements dated 05.09.2009 entered with M/s Hotel Kamal and agreement dated 03.11.2007 entered with the M/s Harsha Hospitalities Pvt. Ltd., the facts are not in dispute and appellant as per the agreements was to receive the amounts as a Revenue sharing, also that there is a requirement of payment of minimum guaranteed amount. We find that the entire agreement with these two persons, M/s PMCL had always indicated and agreed between them as to receiving an amount which is generated as Revenue. 6. In this kind of arrangement, it is noted that there is no provision any service to ....

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.... to that extent merits acceptance. 8. As regards the reversal of CENVAT credit on the service tax paid by various common input services and the services utilized for exempted output service, we find from the records that appellant has been pleading before the lower authorities that they have maintained separate records for the services rendered for the exempted category and they have not availed CENVAT credit of the service tax paid on common input services. The Adjudicating Authority it seems has not considered this plea in a holistic manner, and in a pedantic approach held that demand is liable to be confirmed. In our view, the Adjudicating Authority should be given an opportunity to reconsider the entire evidences on this point. Witho....