TaxTMI 
TaxTMI 
2019 (12) TMI 808
X X X X Extracts X X X X
X X X X Extracts X X X X
....e 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 Khalsa College, Amritsar Khalsa College Girl Hostel, Amritsar - Charitable Trust U/s ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 charitable institution for rendering services as detailed in Table above, as under:- i) For construction of EWS Flats of carpet area 45 Sqm per flat, the appellant entered into contract with Improvement Trust, Amritsar. ii) For construction of Multi-leve....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 business entity and body corporate, therefore, they are entitled for the benefit of Notification No. 30/2012-ST dated 20.06.2012 at Sr. No. 9. He further submitted that the said authority constructing flats for use below of poverty line are also exempt from service tax as held by the Hon‟ble Punjab and Haryana High Court in the case of Bharat Bhushan Gupta & Company vs....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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, or (iii) an art or cultural establishment; (d) canal, dam or other irrigation works; (e) pipeline, conduit or plant for (i) drinking water supply (ii) water treatment (iii)sewerage treatment or disposal; or (f) a residential complex predominantly meant for self-use or the use of their employees or other persons specified in the Explanation 1 to clause 44 of section 65 B of the said Finance Act; 13.....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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) any co-operative society established by or under any law; (d) any dealer of excisable goods, who is registered under the Central Excise Act, 1944 (1 of 1944) or the rules made thereunder; (e) any body corporate established, by or under any law; or (f) any partnership firm whether registered or not under any law including association of persons; (iii) provided or agreed to be provided by way of sponsorship to anybody corporate or partnership firm located in the taxable territory; (iv) provided or agreed to be provided by,- (A)....
X X X X Extracts X X X X
X X X X Extracts X X X X
....,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. in respect of services provided or agreed to be provided by way of supply of manpower for any purpose 25% 75 % 9. in respect of services provided or agreed to be provided in service portion in execution of works contract 50% 50% 10 in respect of any taxable services provided or agreed to be provided by any person who is located in a non-taxable territory and received by any person located in the taxable territory Nil 100% Explanation-I. - The person who pays or is liable to pay freight for the transportation of goods by road in goods carriage, located in the taxable territory shall be treated as the person who receives the service for the purpo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....idered 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 provides that the State Government shall exercise superintendence and control over the Board and its officers. The aforesaid provisions of the Act clearly show that the Board is a Governmental Authority, as it is fully under the control of the State Government" It was further observed by the Hon‟ble High Court as under:- "21. In view of our aforesaid discussion, it can safely be opined that for the kind of contract entered into between the petitioners and the Board, no service tax is leviable, hence, the action of the Board in deducting part of the service tax, though payable in the hands of the Board, if tax is leviable, from the bills of the petitioners is declared to be illegal. Issue No. (ii) : 2....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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, but thereafter, the appellant is liable to pay only 50% of the service tax on them in terms of Notification No. 30/2012-ST dated 20.06.2012 at Sr. No. 9. 15. We further take a note of the fact that in the rest of the services, it is objected by the revenue that the said services have not been provided to the business entity registered at body corporate.We find that the construction of Multi-level car parking for Government Medical College and Hospital and contract was entered by PWD, B&R [Public Works Department (Building and Roads)], Amritsar; Repair and renovation work at Medical College, Amritsar to a contract with PWD (B & R), Amritsar; Meritorious School at Ferozpur to a contract with PWD (B & R), Ferozpur; Construction of foot-over bridge at Amritsar to a con....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ovement 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 of this Act to acquire, borrow and raise commercial loans and hold property and shall by the said name, sue and be sued. The PWD (B & R) is into the business of construction of building and roads etc. and are also body corporate in terms of section 3 of Punjab Roads and Bridges Development Board Act, 1998 16. Further, the CPWD is engaged in business / profession of design , construction and maintenance of central government non-residential building other than Railways, Airports; construction and maintenance of residential accommodation meant for central government employee providing consultancy services in planning , designing and construction of Civil Engineer products, as and when required by public undertaking and other autonomous bodies. CPWD like PWD are also body corporate. 17. Further, in terms of Section 3 of Punjab Small In....