TaxTMI 
TaxTMI 
2025 (12) TMI 1145
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..... The appellant replied on the notice vide their letter dated 22.08.2012, the Learned Commissioner had passed the impugned order. Aggrieved by order of Commissioner, Appellant has filed this appeal. 4. Learned Counsel for the appellant submit that the construction of Medical Colleges, which are recognized by the Medical Counsel of India to impart Medical Education to the students qualified based on the examination conducted by the Government and construction of associated teaching Hospitals to extend the medical treatment facilities in the course of Medical Education, are therefore, prima facie, not intended for any commercial or industrial purposes. This fact could easily be verified at any point of time from the details available in the open website of the aforesaid Medical colleges, or from the copies of the agreements entered, or by visiting the aforesaid colleges and hospitals if felt necessary or by corresponding with the Government of Andhra Pradesh. Thus, the following constructions are made for non-commercial and non-industrial purposes and are not taxable services and hence the demands on the value of the constructions under "Commercial or Industrial Construction Servi....
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.... will not be taxable, in terms of Board's Circular No 108/02/2009-ST dated 29.01.2009. For the period after 01.07.2010, construction service provided by the builder / developer is taxable in case any part of the payment / development rights of the land was received by the builder / developers before issuance of completion certificate and the Service Tax would be required to be paid by builder / developers even for the flats given to the land owner. As the clarifications / circulars issued by the CBEC are binding on the department as held by the Apex Court in a catena of cases, the subordinate officers cannot take a different stand. The Learned Commissioner has made an attempt to state that the present case is not envisaged in the above case circular by relying on the decision of CESTAT Chennai, in the case of M/s LCS City Makers Pvt Ltd., Vs CST Chennai. The builder has no construction agreement but has an agreement of sale by receiving instalment payments. The intended buyer has no option to get constructed his flat by other person. Therefore, CBEC circular is squarely covered in the appellant's case and hence there is no Service Tax liability on the appellants. 8. On the deman....
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....intimation to the department. This amount voluntarily paid, but not in the course of any detection or investigation. In terms of provision of Section 73(3) of the Finance Act, 1994, the notice ought not to have been issued for the amount of Rs. 98,066/- that was already paid to that extent. 11. Learned Counsel for the appellant also submitted that the appellant have not received any Service Tax amounts over and above the amounts billed and as such the amounts received by them needs to reconsidered as cum tax receipts for computation of Service Tax liability. 12. Since, no Service Tax was applicable on the referred services, it cannot be said that appellant had an intention to evade the Service Tax. By our collection of the consideration for the rendered services, and that not collected any single paisa from the clients towards Service Tax. The appellant registered with the department and all transactions are entered in their books of accounts as per the accounting procedure. The entire proceedings initiated in the Show Cause Notice were based on the information recorded in book of accounts. In these circumstances, invoking the extended period of limitation under the proviso o....
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....rawings and scope of the work agreed by both parties. There was a construction of a building and that said building was primarily used for commerce. Hence, construction of HNR Varam is classifiable under the category of 'Commercial or Industrial Construction Service'. Learned AR further stated that the appellant's had received an amount of Rs. 43,80,000/- towards the construction of a residential complex by name of 'HNR Arcade'. The appellant's have claimed that they need not pay service tax as per the clarification given by the Board vide Circular No. 108/02/2009 ST dated 29.01.2009. From the above clarification of the Board, it is evident that the levy of Service Tax would not be attracted till 01.07.2010, in case of transaction involving the construction of a residential complex initially executed through an "Agreement of Sale" which provides for stage wise payments by the prospective buyer and then subsequent transfer of property in favour of the buyer through execution of a "Sale Deed" on which the appropriate stamp duty is paid. In the instant case the builder had not entered into any 'agreement to sell but had entered into "agreement for construction" of house and flat and t....
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....imarla Village, Vizianagaram vide various work orders. The appellants had furnished only work orders relating to the said works and had not produced any other documents or ground plans in respect of this project. The appellants have not produced any evidence to show that the organization for which the construction has been taken up, is an organization solely set up for imparting education and not for profit and have also not furnished any ground plan of the constructions as envisaged under Board's Circular No. 80/10/2004-ST dated 17.09.2004. In the absence any documentary evidence to prove the constructions under taken is not primarily used in commerce or industry, the services rendered by the appellants to Sri Rama Educational Trust are classifiable under the category of 'Works Contract Service'. In so far as Varam Residency is concerned the appellants had under taken construction of "Varam Residency" at Palakonda Road, Srikakulam. As per the detailed statement furnished by the appellants, they had received an amount towards project "Varam Residency". The appellants have not contested the facts in this issue. Appellant had also undertaken constructed for Ambica Infrastructures Viz....
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.... Tax. In the present case the appellant's have not paid Service Tax on any of the projects discussed above and the Proprietor of M/s HNR Constructions, Sri. Tangi Harinarayana in his statement dated 03.11.2011 had submitted that he would like to discharge their Service Tax liability under works contract service availing the composition scheme and reiterated the same in his reply to the Show Cause Notice. However, as the appellant's had not obtained registration under the 'Works Contract Service' and had not discharged their Service Tax liability in respect of any of the services undertaken by them, since 2007, it appears that the appellants are not eligible to avail the composition scheme. Renting of immovable property during the period 2007-08 to 2010-2011 the appellant's had received rents from M/s Minerva Softech Pvt Ltd., M/s Vasundara Projects Pvt Ltd., for occupation of his apartment as office building. The appellants had also received rent from M/s Bharathi Cellular Ltd., towards telecommunication tower on the roof of their building." As per Section 65 (90a) of the Chapter-V of the Finance Act, 1994 as amended, "renting of immovable property" includes renting, letting, le....
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....es and perused the records. 20. We find that the demand has been confirmed under various categories including Commercial or Industrial Construction Service, Works Contract Service and Renting of Immovable Property Services. In so far as, CICS is concerned the matter is no longer res-integra, as it is now settled issue that no demand can sustain for the period prior 01.07.2010, as clarified by CBEC Circular No. 108/02/2009 - ST dated 29.01.2009, and further, confirmed vide subsequent Circular no. 151/2/2012 - ST. Therefore, the demand made either under the category of CICS or under WCS for the period prior to 01.07.2010 would not sustain, it is not disputed in all these works under taken by the appellant there is an involvement of goods along with services and therefore, it be in the nature of works contract only. In so far as, period beyond 01.07.2010 is concerned, we find that the appellant is taking a plea that the nature of construction was for certain hospitals etc, and it could not be said to be use for any Commercial or Industrial purposes and that the Department has not made out a case to especially its classification under the category of their scope and definition of th....