TaxTMI 
TaxTMI 
2026 (3) TMI 1448
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....and S&HE Cess), along with interest and penalties. 3. The said Notice was adjudicated by the Ld. Additional Commissioner, Service Tax-I Commissionerate, Kolkata vide his Order-in-Original No. 79/ADC/ST-I/Kol/2015-16 dated 29.02.2016 wherein the ld. adjudicating authority confirmed the demand of Service Tax, as proposed, along with interest. The ld. adjudicating authority also imposed a penalty equal to the Service Tax demand confirmed of Rs.15,20,324/- under Section 78 of the Finance Act, 1994, besides imposing penalties of Rs.10,000/- each under Sections 77(1) and 77(2) [totalling to Rs.20,000/-]. 3.1. On appeal, the Ld. Commissioner (Appeals), vide the order impugned herein, has upheld the demands confirmed. 3.2. Aggrieved by the confirmation of the demand of Service Tax, along with interest and penalty vide the impugned order, the appellant has filed the present appeal. 4. The Ld. Counsel appearing on behalf of the appellant submits that the appellant were engaged in the business of construction of residential complexes and commercial and industrial constructions during the relevant period; that the Department had issued a letter dated 15.05.2013, whereby the Departm....
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....ed construction of residential complex with 04 (Four) flats only, whereas as per the charging section, Service Tax is leviable on construction of residential complexes only when the construction activity is undertaken for more than 12 flats in a complex; that although the documentary evidence submitted by them clearly evidences the fact that they have constructed the residential complex with only four flats, the lower authorities have erroneously confirmed the demand of Service Tax under the category of 'construction of residential complex service'. Hence, the Ld. Counsel for the appellant contends that the residential construction activity undertaken by them falls outside the purview of Service Tax levy under the category of 'construction of residential complex service'. Accordingly, it is his submission that the demand confirmed in the impugned order in respect of construction of residential complex service is not sustainable on merits. 4.3. The Ld. Counsel for the appellant has also challenged the demand confirmed against them on the ground of limitation. It has been pointed out by the appellant that the Show Cause Notice in this case has been issued on 20.10.2014 demanding S....
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.... 2013. 8.1. I have perused the documentary evidence submitted by the appellant. On perusal of the Agreement for Development entered into between the parties on 19th February, 2010, it can be observed that the appellant has constructed 04 (four) numbers of residential units in a complex, as per the required specifications. The relevant clause of the said agreement is reproduced below for ease of reference:- "1.6 BUILDING: shall mean the proposed ground plus four-storied building consisting of four flats to be constructed over the land at the said plot as per the sanctioned plan of the Kolkata Municipal Corporation and as per the specifications mentioned in the SCHEDULE "D" hereunder written." 8.2. Section 65(91a) of the Finance Act defines "Residential complex" as follows: - "(91a) "residential complex" means any complex comprising of - (i) a building or buildings, having more than twelve residential units; (ii) a common area; and (iii) any one or more of facilities or services such as park, lift, parking space, community hall, common water supply or effluent treatment system, located within a premises and the layout of suc....
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....e period from 2008-09 to 2011-12. For ready reference, the said certificate is reproduced below: - 9.2. No contrary evidence has been adduced by the Revenue so as to controvert the correctness of the Chartered Accountant's certificate produced by the appellant certifying payment of Service Tax on the amount received towards commercial and industrial construction services. Under such circumstances, I hold that the appellant has discharged their Service Tax liability in respect of the commercial and industrial construction services rendered by them during the relevant period. Accordingly, the amount of Rs.4,26,522/- already paid by the appellant stands appropriated against their Service Tax liability in respect of commercial and industrial construction service. 9.3. Considering the fact that the above short payment of Rs.4,26,522/- was voluntarily paid by the appellant even before the Order-in-Original was passed, reflecting a bona fide approach, I set aside the imposition of penalty in respect of the above amount confirmed. 10. I also find that the appellant has taken an alternate plea wherein they have challenged the legality of the impugned demand on the ground that the s....
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....axability of such services. Thus, I find that the demand raised and confirmed against the appellant in this case merely on the basis of comparison of ST-3 Returns and Bank Statement is not sustainable in the eyes of law. Accordingly, I hold that the demand of Service Tax confirmed against the appellant, over and above the amount already paid and admitted by the appellant, deserves to be set aside on this ground also. 11. Further, I find that the appellant has contested the demand confirmed against them in the present case on the ground of limitation also. Admittedly, the demand has been raised for the period from 2009-10 to 2013-14 by way of the Show Cause Notice dated 20.10.2014, by invoking the extended period provisions under the proviso to Section 73 of the Finance Act, 1994. I take note of the appellant's submission that they were registered with the Department and also filing their ST-3 Returns regularly. Thus, the Department was well aware of the activities undertaken by the appellant. The short payment of Rs.4,26,522/- was voluntarily paid by them even before passing of the adjudication order. The appellant, vide their letter dated 10.06.2013, had duly informed the Depar....
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.... 1. We have examined the audited Balance Sheet , Profit and Loss accounts and books of accounts with regard to Turnover, Duties and taxes for the period 21" May 2008 to 31.03.2009 , 2009-10, 2010-11 and 2011-12 of M/s Laxmi Projects , a partnership Firm presently at 242/2/C Manicktala Main Road , Kolkata - 700 054. 2. Based on the books of accounts, we have also noticed that the Firm had dealt business only with M/s Indus Tower Limted, a joint venture company, in the business line of Telecommunication service. M/s. Laxmi Projects was a works contractor of the aforesaid company. The total turnover as reflected in the audited Balance sheet over the period of business from 2008-09 to 2010-11 is exclusively with M/s Indus Tower Limted and the total business of the firm during the period was Rs 5,49,30,562/ -. The Firm did not raise any invoices to parties other than to M/s Indus Tower Limited. 3. We certify that the Firm had conducted business transaction with Indus Tower Limited was mainly Works Contract Service in connection to Civil and electrical works for Telecomunication Tower. The Firm had charged applicable Service Tax under section 65B(54) of Finance Act, 1994 as well as Va....