TaxTMI 
TaxTMI 
2024 (12) TMI 357
X X X X Extracts X X X X
X X X X Extracts X X X X
....ssue a writ of mandamus or any other appropriate writ(s), order(s) or direction(s) in the nature thereof, to hold that the services provided by the Petitioner to Respondent No. 5 under purchase order-P.O. No. CT/P0/04/2014-15 dated 9 September, 2014 are exempt from Service Tax being services provided to the Government of India; (c) Alternately, issue a writ of mandamus or any other appropriate writ(s), order(s) or direction(s) in the nature there of, directing the Respondent No. 1 to issue necessary directions for ensuring that the services rendered by various contractors under the same Purchase Order/Tender issued by Respondent No. 5 are taxed uniformly without any discriminatory treatment to the Petitioner, in violation of Article 14 of the Constitution of India. (d) Issue any other writ(s), order(s), or direction(s) as may be deemed fit and proper by this Hon'ble Court." FACTUAL MATRIX: 2. Shorn of unnecessary details, on 21 June 2013, the respondent No.5 herein i.e., Bharat Sanchar Nigam Limited ['BSNL'],a Public Sector Undertaking under the Department of Telecommunications ['DoT'], Ministry of Communication and Information Technology ['MCIT'], in the capacity of an "....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n, commissioning, installation, completion, fitting out, repair, maintenance, renovation, or alteration of- (a) a civil structure or any other original works meant predominantly for use other than for commerce, industry, or any other business or profession; (b) a structure meant predominantly for use as (i) an educational, (ii) a clinical, or(iii) an art or cultural establishment; or (c) a residential complex predominantly meant for self-use or the use their employees or other persons specified in the Explanation 1 to clause (44) of section 65 B of the said Act.; under a contract which had been entered into prior to the 1st March, 2015and on which appropriate stamp duty, where applicable, had been paid prior to such date: Provided that nothing contained in this entry shall apply on or after the 1st April, 2020;" {bold emphasis supplied} 5. Upon receiving the said response from the BSNL, the petitioner ceased to charge service tax on its invoices on BSNL with effect from 01 April 2016. However, due to the failure on the part of the BSNL and DoT to provide any certificate of exemption or any clarity on the issue despite the service of numerous letters by the petitioner he....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... capacity of an "implementation agency" which was receiving 7.5% as "implementation charges" for the 'NFS Project', and the ultimate beneficiary of which is the armed forces i.e., Ministry of Defence, Government of India. ANALYSIS AND DECISION 9. Upon hearing the learned counsels for the parties and on perusal of the record, it is manifest that the Government of India, rather than BSNL, is the "recipient of service" in this case. In other words, the Defence Services, Government of India, is the beneficiary of the services provided by the petitioner through its subcontractors. It is but also apparent that the services provided by BSNL to the DoT by way of implementation of the Project are also exempted from the applicable service tax in terms of Entry 12A of the 'Mega Exemption Notification' dated 20 June 2012 read with Section 1021 of the Finance Act, 1994, and by the same logic the notional services provided by the petitioner to BSNL would also be exempt from the applicability of service tax, by virtue of Entry 29 (h) provided under the said 'Mega Exemption Notification' dated 20 June 2012 which reads as under: "29. Services by the following persons in respective capacities- ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... at the time of incorporation in the works executed. In our view, if the argument of the Department is to be accepted, it would result in plurality of deemed sales which would be contrary to Article 366 (29-A) (b) of the Constitution as held by the impugned judgment of the High Court. Moreover, it may result in double taxation which may make the said 2005 Act vulnerable to challenge as violative of Articles 14, 19 (1) (g) and 265 of the Constitution of India as held by the High Court in its impugned judgment." {bold emphasis supplied} 11. Applying the same analogy to the instant matter, the notification dated 20 June 2012 wholly exempts certain taxable services from the service tax leviable under Section 66B of the Finance Act, 1994, vide afore-referred Entry 12A(a) which categorically exempts services provided to the government or a government 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 predominantly for use other than for commerce, industries or any other business or profession. 12. Undoubtedly, the work in the nature of la....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ontractors and has got cleared their bills from the government on actual basis. For this, M/s BSNL has issued a notice inviting tender relating to works contract for procurement, supply, trenching, laying, installation, testing and maintenance of Optical Fibre Cable, PBL DUCT and Accessories for construction of Exclusive Optical NLD Backbone and Optical Access routes on Turnkey basis for Defence Network against Package B of Tender No. CA/CNP/NFS/T-441/2013 dated 21.06.2013. The above notice inviting tender was issued on behalf of Project Implementation Core Group (PICG), Ministry of Defence, Government of India. M/s VTL was awarded the project vide purchase order dated 30.07.2014 by M/s BSNL. During the time of award of purchase order (prior to 01.04.2015) the services provided to Government in relation to construction, erection, commissioning, installation etc. for a project other than commerce or industry were exempt from Service Tax. Accordingly, clause (36) of the purchase order awarded by the Claimant stated that Service Tax was not applicable in respect of the activities undertaken for the project and the exemption was withdrawn vide Notn. No. 6/2015-ST w.e.f 1.04.2015 and ag....