AI Drafter 
TaxTMI 
TaxTMI 
2023 (5) TMI 98
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....kes support from the same decision of Krishi Upaj Mandi Samiti (supra) wherein the demand for extended period has been set-aside on the ground that there is no malafide on the part of the assessee to evade service tax liability. He further submits that in respect of demand if any arise, the appellant may be extended the cum-tax value and the same may be re-quantified by giving the benefit of cum-tax value principle. It is his submission that in view of the above settled position, demand in the present case for the extended period may be set-aside. 2. Shri Himanshu P Shrimali, Superintendent (AR) appearing on behalf of the respondent reiterates the findings of the impugned order. 3. We have carefully considered the submissions made by both the sides and perused the record. We find that issue has been decided against the assessee in the case of Krishi Upaj Mandi Samiti - 2017 (4) GSTL 346 (Tri. Del.). The said decision is reproduced below:- "6. We have heard both the sides and perused the appeal records. First, we considered the preliminary objection regarding validity of some of the demand notices. The appellants claimed that demand notices issued after 1-7-2012 canno....
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....vereign/public authority required to be provided under a statute can be considered as 'provision of service' for the purpose of levy of Service Tax. 2. The issue has been examined. The Board is of the view that the activities performed by the sovereign/public authorities under the provision of law are in the nature of statutory obligations which are to be fulfilled in accordance with law. The fee collected by them for performing such activities is in the nature of compulsory levy as per the provision of the relevant statute, and it is deposited into the Government treasury. Such activity is purely in public interest and it is undertaken as mandatory and statutory function. These are not in the nature of service to any particular individual for any consideration. Therefore, such an activity performed by a sovereign/public authority under the provisions of law does not constitute provision of taxable service to a person and, therefore, no Service Tax is leviable on such activities. 3. However, if such authority performs a service, which is not in the nature of statutory activity and the same is undertaken for consideration not in the nature of statutory fee/levy, th....
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....ed the allotment letter as well as agreements. The agreement clearly mentions that the allotment is made for a consideration of allotment fee/lease amount. The terms of the agreement/allotment letter clearly indicated the arrangement for renting of immovable property for a consideration. The fact that the allottee uses the shop/premises for commercial purpose is not in dispute. As such, we find the claim of the appellant that the allotment of shop or land to the traders cannot be considered as "renting of immovable property" is not tenable. We also do not agree with the submission of the appellant that such renting out of shop/land is a mandatory/sovereign function carried out by the appellant. There is no support for such assertion. As such, we find that the appellant are liable to Service Tax on the considerations received by them for renting out the shop/land to traders and others for activities of furtherance of commerce. 10. However, we note that with the introduction of Negative List Regime of Taxation w.e.f. 1-7-2012, the appellants' services were excluded from the tax liability. The provisions of Section 66D are as below :- 66D. The negative list shall com....
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....Yes. In terms of the specified services relating to agriculture 'leasing' of vacant services land with or without structure incidental to its use' is covered in the negative list. Therefore, if vacant land has a structure like storage shed or a green house built on it, which is incidental to its use for agriculture then its lease would be covered under negative list entry. Further, on APMCs, the guide clarified as below :- 4.4.11 What are the services referred to in the negative list entry pertaining to Agricultural Produce Marketing Committee or Board? Agricultural Produce Marketing Committees or Boards are set up under a State Law for purpose of regulating the marketing of agricultural produce. Such marketing committees or boards have been set up in most of the States and provide a variety of support services for facilitating the marketing of agricultural produce by provision of facilities and amenities like, sheds, water, light, electricity, grading facilities, etc. They also take measures for prevention of sale or purchase of agricultural produce below the minimum support price. APMCs collect market fees, licence fees, rents, etc. Services provided by....
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.... of entry in the negative list along with various clarifications issued by the Government. On harmonious construction of all material facts on record, we find that the appellants are not liable to Service Tax on shops/sheds/platforms/land leased out in the notified market area for traders for temporary storage of agricultural produce traded in the market. In respect of shops, premises, buildings, etc., rented/leased out for any other commercial purpose other than with reference to agricultural produce (like bank, general shop, etc.), the same shall not be covered by the negative list and the appellants shall be liable to Service Tax. 15. In view of the above position, we find that the appellants are not liable to Service Tax for the period after 1-7-2012. 16. The appellants also contested the demand wherever issued invoking extended period of time. Proviso to Section 73(1) can be invoked only, where the Service Tax has not been paid or levied or short-paid or short levied, by reason of fraud; or collusion; or wilful misstatement; or suppression of facts; or contravention of any of the provisions of Chapter V of Finance Act, 1994 or rules made thereunder with inten....