TaxTMI 
TaxTMI 
2019 (12) TMI 808
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....ervice tax was confirmed by invoking the extended period of limitation alongwith interest and penalty stated as above were also confirmed. Against the said order, the appellant is before us. 3. Ld. Counsel for the appellant submits that the appellant has provided services to Government Educational Institutions, Government Hospitals and other Government works and to Charitable Trust. The details of the services provided by the appellant are as under:- 2013-14 S No. Name of Work Name of Department Gross Amount received A. B. C. D. 1. EWS Flats Pradhan Mantri Aawas Yojna (EWS Flats of Carpet area 45 Sqm), Improvement Trust, Amritsar 2,38,69,605/- 2.* RCC Grain Shed in Khadoor Sahib Punjab Mandi Board, Tran- Taran 28,92,000/- Total 2,67,61,605/- 2014-15 S No. Name of Work Name of Department Gross Amount received A. B. C. D. 1. EWS Flats Pradhan Mantri Aawas Yojna (EWS Flats of Carpet area 45 Sqm), Improvement Trust, Amritsar 12,68,45,478/- 2.* RCC Grain Shed in Khadoor Sahib Punjab Mandi Board, Tran- Taran 45,49,624/- 3. Construction of Girl Hostel at....
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....of Meritorious School at Ferozpur Government Educational Institution 17,30,00,692/- 11. Construction of Girl Hostel at Khalsa College, Amritsar Khalsa College Girl Hostel, Amritsar - Charitable Trust U/S 12AA of Income Tax Act 8,33,569/- 12. Construction of ITI as Adampur Government Educational Building 1,54,56,522/- 13. Construction of Foot Over Bridge at BRTS project at Amritsar Government Bridge 4,17,84,900/- 14. Construction of Foot Over Bridge at BRTS project at Amritsar Government Bridge 1,21,24,000/- Total of original works 35,29,39,376/- Grand Total of construction during 2016-17 51,57,75,728/- The adjudicating authority dropped the demand against the Construction Service of RCC Grain Shed in Khadoor Sahib and rest of the demands were confirmed against the appellant. The appellant is contesting the demand on the following grounds:- For construction of EWS Flats of carpet area 45 Sqm per flat. The appellant has entered into contract with Improvement Trust, Amritsar. He further submits as under:- "2.1 The appellant entered into contract with different government body and chari....
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....o it in clause (7) of section 2 of the Companies Act, 1956 (1 of 1956)" ; The Finance Act, 1994 was restructured and section 65 was omitted vide Ntfn. No. 20/2012 ST dt. 05.06.2012 w.e.f. 01.07.2012. There is no definition in body corporate given in the Finance Act, 1994 w.e.f. 01.07.2012. The Companies Act, 1956 was replaced by Companies Act, 2013. The 2 (11) of Companies Act, 2013 define the word " body corporate" as under:- Section 2 (11) "body corporate" or "corporation" includes a company incorporated outside India, but does not include- (i) a co-operative society registered under any law relating to co-operative societies; and (ii) any other body corporate (not being a company as defined in this Act), which the Central Government may, by notification, specify in this behalf; This definition is wider definition and only limit is the two exclusions mentioned therein. None of the entity is to whom services were provided fall under these two exceptions /exclusions." 4. He further submits that the PWD, CPWD, PSIEC, Trust are ordinarily carrying out activities relating to business/profession and accordingly they are ....
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.... said benefit. 7. Heard the parties and considered the submissions. 8. On careful consideration and submissions made by both sides, we find that the services provided by the appellant can be classified under various categories:- (a) Construction of EWS Flats upto 31.03.2015 and the other services whether they have been provided to body corporate or not? Consequently, the appellant is entitled to the benefit of Notification No. 30/2012-ST dated 20.06.2012 at Sr. No. 9. 9. For better appreciation, the Notification No. 12/2012-ST dated 17.03.2012 is extracted below:- "12. Services provided to the Government or local authority by way of erection, construction, maintenance, repair, alteration, renovation or restoration of - (a) a civil structure or any other original works meant predominantly for a nonindustrial or non-commercial use; (b) a historical monument, archaeological site or remains of national importance, archaeological excavation, or antiquity specified under Ancient Monuments and Archaeological Sites and Remains Act, 1958 (24 of 1958); (c) a structure meant predominantly for use as (i) an educational, (ii) a clinical, ....
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....h March, 2012, and (ii) notification of the Government of India in the Ministry of Finance (Department of Revenue), No. 36/2004-Service Tax, dated the 31st December, 2004, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R 849 (E), dated the 31st December, 2004, except as respects things done or omitted to be done before such supersession, the Central Government hereby notifies the following taxable services and the extent of service tax payable thereon by the person liable to pay service tax for the purposes of the said sub-section, namely:- I. The taxable services,- (A) (i) provided or agreed to be provided by an insurance agent to any person carrying on the insurance business; (ii) provided or agreed to be provided by a goods transport agency in respect of transportation of goods by road, where the person liable to pay freight is,- (a) any factory registered under or governed by the Factories Act, 1948 (63 of 1948); (b) any society registered under the Societies Registration Act, 1860 (21 of 1860) or under any other law for the time being in force in any part of India; (c)....
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....s by road Nil 100% 3 in respect of services provided or agreed to be provided by way of sponsorship Nil 100% 4 in respect of services provided or agreed to be provided by an arbitral tribunal Nil 100% 5 in respect of services provided or agreed to be provided by individual advocate or a firm of advocates by way of legal services Nil 100% 6 in respect of services provided or agreed to be provided by Government or local authority by way of support services excluding,- (1) renting of immovable property, and (2) services specified in sub-clauses (i), (ii) and (iii) of clause (a) of section 66D of the Finance Act,1994 Nil 100% 7 (a) in respect of services provided or agreed to be provided by way of renting of a motor vehicle designed to carry passengers on abated value to any person who is not engaged in the similar line of business Nil 100 % (b) in respect of services provided or agreed to be provided by way of renting of a motor vehicle designed to carry passengers on non abated value to any person who is not engaged in the similar line of business 60% 40% 8.....
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....der:- "The Board has been constituted in terms of the provisions of Section 3 of the Act, as was enacted by the State Legislature. It is a body corporate which consists of a Chairman, a Chief Administrator and such other members, as the State Government may, from time to time, appoint by a notification. The Chief Administrator shall be a person from amongst the officers of the rank of Head of the Department or Joint Secretary of the State Government. It is termed to be a local authority for the purposes of Land Acquisition Act, 1894. Section 20 of the Act provides that subject to control of the State Government the Board may incur expenditure on framing and execution of such housing schemes as may be considered necessary from time to time or as may be entrusted to it by the State Government. Every year, the Board is to prepare a budget in advance for the next year and place it before the State Government for its approval. After sanction is granted by the State Government, the same is published in the Official Gazette. The Board is authorised to borrow money for implementation of the projects, as approved with prior approval of the State Government. Section 72 of the Act pr....
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....ows that the contractor is liable to pay various taxes, as mentioned in the clause, directly to the department in accordance with the Rules and the Regulations in force from time to time. The case of neither of the parties is that the liability, which may be put on the contractor/service provider, if tax is leviable, is being passed on to the Board, as the scheme of the Act provides for levy of tax 50 : 50 on service provider and the service recipient. Hence, the action of the Board, even if it is assumed that tax is leviable, to pass on their share of burden as per the provisions of the Act on the contractors is not envisaged in the clause. 25. In view of our abovesaid discussion, the questions, as framed above, are answered as under : (i) On the contract for construction of BPL houses, as awarded by the Board to the petitioners, no service tax is leviable w.e.f. 1-7-2012; and (ii) the Board is not entitled to pass on the burden of service tax payable on its part, if the tax is leviable, upon the contractors." Therefore, we hold that for the period prior to 01.04.2015, the appellant is not liable to pay service tax at all on construction of EWS Flats,....
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..... None of the entity is to whom services were provided fall under these two exceptions /exclusions. The Improvement Trust are "Body Corporate" as per section 3 of "The Punjab Town Improvement Act, 1922‟ which reads as under:- " Section 3 - Creation and incorporation of trust The duty of carrying out the provisions of this Act in any local area shall, subject to the conditions and limitations hereinafter contained, be vested in a board to be called "The (name of town) Improvement Trust" hereinafter referred to as "The Trust"; and every such board shall be a body corporate and have perpetual succession and common seal, and shall by the said name sue and be sued". The Improvement Trust is in business of acquiring land, construction thereto and also body corporate as per section 3 of Punjab Town Improvement Act, 1922. The PWD(B&R) are constituted under The Punjab Roads and Bridges Development Board Act, 1998 and in terms of Section 3 of the said Act defined as under : Section 3 The Board Constituted in terms of sub-section (2), shall be body corporate having perpetual succession and a common seal with powers, subject to the provisions ....