TaxTMI 
TaxTMI 
2022 (8) TMI 610
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....able property service" etc. Department observed that the appellant has neither taken the registration with the Service Tax Department nor the service tax has been ever paid by the appellant, despite that their activity was not a charitable activity. As such the exemption under clause (4) of Mega Notification No. 25/2012 dated 20.06.2012 was not applicable upon them. Alleging that the appellant has failed to comply with the provisions of Section 68 of Finance Act, 1994 read with Rule 6 of Service Tax Rules, 1994 by not paying total the service tax liability during the Financial Year 2012-13 to 2014-15 for providing various taxable services that the Show Cause Notice No. 68/2016 dated 24.04.2018 was served upon the appellants demanding service tax to the tune or Rs.2,71,09,544/- along with the interest and the appropriate penalty. The said proposal has been confirmed vide the order under challenge. Being aggrieved the appellant is before this Tribunal. 3. We have heard Mr. R.M. Saxena, learned Counsel for the appellants and Mr. Ravi Kapoor, learned DR for the Department. 4. It is submitted on behalf of the appellant that on the basis of enquiry by the department the appellant was f....
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....ount charged for performing such activity shall be liable to service tax. Various fee charged by the appellants are also impressed upon to be rightly held as consideration for rendering services and as such are rightly charged to service tax. Justifying the reliance upon the circular dated 13.04.2016 in para 6.16 of the order under challenge it is held that appellant has rightly been held liable to pay the service tax. Learned DR has relied upon the decision of this Tribunal in the case of RIICO Ltd. Vs. Commissioner of C.Ex. Jaipur-I reported as 2018 (10) G.S.T.L. 92 (Tri.-Del.) and also the decision in the case of Greater Noida Industrial Development Authority Vs. C.C.E. & S.T., Noida reported as 2015 (38) S.T.R. 1062 (Tri.-Del.). With these submissions learned DR has prayed for dismissal of the impugned appeal. 6. After hearing the rival contentions and perusing the entire records, it is observed and held as follows: 6.1 Initially, total amount of Rs.2,71,09,544/- (Two Crores Seventy One Lakh Nine thousand Five Hundred Forty Four) was proposed to be recovered as service tax liability of the appellants for Financial Year 2012-13 to 2014-15 on three counts: a. residential comp....
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....ration must either be a value exchanged for performance or performance of promise itself is consideration. 8.3. The bare reading shows that for levy of service tax on any transaction, there should be a service provider and a service recipient apart from identifying a transaction under a specific taxable category. Top of that the service provider must be getting something either monetary or non-monetary for his benefit in lieu of providing said service i.e. a quid pro quo. 8.4. Reverting to facts of present case, it is observed that the Adjudicating Authority has confirmed the demand on several kinds of fees collected by the appellant for the sole reason that as per clause (c) of Section 65 B (44) the fees taken in any Court or Tribunal only are excluded. The Section is silent about excluding any other fee. But the fact remains is that the appellant is an entity created as an Urban Development Authority in terms of Section 4 of Uttar Pradesh Urban Planning and Development Act, 1973 for development work of Haridwar & Roorkee prior to creation of state of Uttrakhand with the objects to promote and secure the development of the area and accordingly, to execute works in connection wit....
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....vities of a sovereign/public authority, performed under a statute, can be considered as 'provision of service' for the purpose of levy of service tax and the amount or fee collected, if any, for such purposes can be treated as consideration for the services provided. On the above issue it has been clarified that activities assigned to and performed by the sovereign/public authorities under the provisions of any law are statutory duties. The fee or amount collected as per the provisions of the relevant statute for performing such functions is in the nature of a compulsory levy and are deposited into the Government account. Such activities are purely in public interest and are undertaken as mandatory and statutory functions. These are not to be treated as services provided for a consideration. Therefore, such activities assigned to and performed by a sovereign/public authority under the provisions of any law, do not constitute taxable services. Any amount/fee collected in such cases are not to be treated as consideration for the purpose of levy of service tax. However, if a sovereign/public authority provides a service, which is not in the nature of statutory activity and the....
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....ed similar issue of activities performed by sovereign or public authorities under provisions of law in nature of statutory obligations for which there was compulsory levy. Hon'ble High Court passed stricture against the department and held in Para 14 "MIDC is a statutory Corporation which is virtually a wing of the State Government. It discharges several sovereign functions. In our view, the Revenue ought not to have compelled MIDC to prefer Appeals before Appellate Tribunal. Not only that MIDC was driven to prefer Appeals before the Appellate Tribunal, these groups of Appeals were preferred by the Revenue. Needless to add that MIDC was required to incur huge expenditure on litigation. All this could have been avoided by the Appellant." The Hon'ble Apex Court also in the case of Calcutta Municipal Corporation Vs. Shrey mercantile (P) Ltd. reported in (2005) 4 SCC 245 examined the meaning and scope of terms "Fee" and "tax". It was held that: "14. According to Words and Phrases, Permanent Edn., Vol. 41, p. 230, a charge or fee, if levied for the purpose of raising revenue under the taxing power is a "tax". Similarly, imposition of fees for the primary purpose of "regulation an....
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....liable to tax. We further observe that the findings of adjudicating authority "regarding misc. receipts and the service tax liability there upon has not contested by the appellant. Accordingly, we hold that on the income under heads of 'Free Hold Lease Rent, Miscellaneous Receipt and Harilok Maintenance Service', the appellant was liable to pay service tax. 10.2. Finally coming to the issue of show cause notice being barred by limitation, it is observed that demand in question pertains to the period 2012-13 and 2013-14. The show cause notice is given in April 2018 i.e. much beyond the period of normal limitation. The extended period can only be invoked in terms of proviso to Section 73 (1) of Finance Act, 1994 i.e. only in the cases where ingredients of fraud, collusion, willful mis-statement, suppression of facts etc. with an intent to evade tax are present. We observe that there is no evidence adduced on record to prove the aforesaid allegations and to prove the attempt of the appellant to commit any of the above alleged acts. It has already been observed that all the receipts on account of collection of statutory fees and all income shown under various heads were duly recorded ....