TaxTMI 
TaxTMI 
2024 (11) TMI 349
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....not a commercial construction, therefore, the same is not taxable. 2.1 He further submits that appellant was under a bona fide belief that the term 'commercial or industrial construction service' would only cover construction of new building or civil structure for the purpose of commercial or industrial. The construction of hostel building for educational institutions cannot be considered as construction for the purpose of commercial or industrial. Hence, the term 'commercial or industrial construction service' would not cover the construction undertaken for educational institution for non-commercial purpose. This view of the appellant is also supported by the decisions of the Hon'ble Tribunal and also by the decision of the Hon'ble High Court of Madras in the case of M/s G. Ramamoorthi Construction India Pvt. Ltd.- 2015 (40) STR 632 hence, there is no suppression of facts with intent to evade the payment of tax, therefore, the extended period of limitation cannot be invoked. He placed reliance on the following judgments:- * M/s. Harsh Construction Pvt. Ltd.- 2014 (35) STR 617 * Jyoti Sarup Mittal - 2017 (3) GSTL 478 * Era Infra Engineering Pvt. Ltd.- ....
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....nology (Supra) this Tribunal has passed the following order:- "6. After hearing both the parties, we are of the opinion that the question for being adjudicated are as follows :- (A) As to whether the appellant is a business entity. (B) As to whether the services as received by appellant from CPWD, a Govt. Department is a support service. (C) As to whether the demand as confirmed is sustainable. 7. The respective findings are as follows :- (A) The term 'business entity' is defined under Section 65B(17) of the Finance Act, 1994 to mean; "Any person ordinarily carrying out any activity relating to industry, commerce or any other business or profession." The adjudicating authority below has held that the appellant is covered under 'any other business' in the said definition and as such is a business entity. But we are of the opinion that term 'any other business' has to be confined to the general meaning of any activity which is profit motivated. Hon'ble Supreme Court in the case of Assistant Collector of Excise v. Ramdev Tobacco Co. - 1991 (51) E.L.T. 631 (S.C.) has held that when a general word in a statute follo....
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....ry, Part II, Section 3, sub-section (i) vide number G.S.R. 210(E), dated the 17th March, 2012, the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts the following taxable services from the whole of the service tax leviable thereon under Section 66B of the said Act, namely :- xx xx xx 12. Services provided to the Government, a local authority or a governmental authority by way of construction, erection, commissioning, installation, completion, fitting out, repair, maintenance, renovation, or alteration of - a civil structure or any other original works meant (a) predominantly for use other than for commerce, industry, or any other business or profession; xx xx xx 2. Definitions. - For the purpose of this notification, unless the context otherwise requires, - xx xx xx (s) "governmental authority" means a board, or an authority or any other body established with 90% or more participation by way of equity or control by Government and set up by an Act of the Parliament or a State Legislature to carry out any function entrusted to a municipality under Article 243W of the ....
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....ever and shall include advertisement and promotion, construction or works contract, renting of immovable property, security, testing and analysis; The bare perusal of this definition makes it clear that for any services received to be called as support service, the important ingredient is that the support should have comprised of such functions that the recipient is able to carry out in ordinary course of operations themselves. However, they have outsourced the same to someone else. In the present case, as discussed above, the appellant is carrying out the function of imparting education and the technical knowhow/consultancy but the service received from CPWD is that of construction of various civil structures. It becomes absolutely clear that the services received are not otherwise the activity of the appellant themselves. Outsourcing thereof will not bring the service received under the category of support service. Therefore, we hold that the adjudicating authority below has formed a wrong interpretation of the definition while holding the impugned services received as the support services. We accordingly are of the opinion that order to that extent is not sustainable. ....
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....ore, an apparent mistake on the part of the adjudicating authority below. Once the demand is not sustainable, as discussed above, question of accruing interest and of imposition of penalty does not at all arise. 8. As a result of entire above discussion, the order under challenge is hereby set aside. Appeal is accordingly, allowed." c) In the case of Jatan Construction Pvt Ltd, (Supra) Hon'ble Rajasthan High Court has passed the following order:- "3.5 Counsel for the appellant has also taken us through the finding of the first authority observing as under : 9. Result of Investigation : 9.1 Investigation conducted by DGCEL, Ahmedabad against M/s. Jatan Construction P. Ltd., Ajmer as discussed in the foregoing paras, reveals that M/s. Jatan Construction P. Ltd. has been engaged in the business of execution of civil construction projects, under works contract. During the course of the search, it was found that in the financial year 2008-09 to 2011-12. M/s. Jatan Construction P. Ltd., Ajmer was allotted the contracts for civil construction work of Hostel Building for Post Graduation Girls, at Sardar Patel National Institute of Techn....
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.... terms and conditions of the agreement were mentioned. The assessee was directed to furnish bank guarantee, insurance coverage and obtaining statutory licenses. The letter written by Sh. A.K. Gupta AGM of NBCC, specifically mentioned that "This letter of award shall form part of the contract agreement. This letter of award is being issued in duplicate. The duplicate copy is to be signed and stamped by the authorized signatory of your company and is to be returned to this office in token of your confirmation and acceptance in full". In this letter the contract was for construction of P.G. Hostel at SVNIT, Surat. The cost of the said project was revised vide letter, dated 12-3-2010. Similar Letter No. NBCC/GM-RBG (E&I) ESIC/Jaipur/2009/1110, dated 3-3-2009 was for contract for construction of Hospital Building including internal services, External electrical, Fire Fighting, at Jaipur. 17.4 From the above letters, it is evident that assessee made contracts for construction of above two projects with M/s. NBCC and raised running account bills to M/s. NBCC, who made payments. I find that assessee acted as per terms and conditions specified in their letter of agreement and provi....
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....ds, and (ii) such contract is for carrying out - (a) Erection, commissioning or installation of plant, machinery, equipment or structures, whether pre-fabricated or otherwise. Installation of electrical and electronic devices, plumbing drain laying or other installations for transport of fluids, Heating, ventilation or air-conditioning including related pipe work, duct work and sheet metal work, thermal insulation, sound insulation, fire proofing or water, proofing, lift and escalator, fire escape staircases or elevators; or (b) Construction of new building or a civil structure or a part thereof, or of a pipeline or conduit, primarily for the purposes of commerce or industry; or - (c) Construction of a new residential complex or a part thereof; or (d) Completion and finishing services, repair, alteration, renovation or restoration of, or similar services, in relation of (d) and (e) above; or (e) Turnkey projects including engineering, procurement and construction or commissioning (EPC) projects. 4. He contended that the Tribunal has seriously committed an error in taking a view inspite of the decision of Banglore Tribunal in Ram....