TMI Blog2023 (11) TMI 825X X X X Extracts X X X X X X X X Extracts X X X X ..... , it is also stated by the appellant that they have discharged applicable Sales Tax / VAT on the consideration received for renting out the said Fit Outs, holding the same as transfer of right to use the goods (deemed sale). The very same issue was considered by the Tribunal in the case of M/s. Ascendas IT Park (Chennai) Ltd. [ 2018 (1) TMI 827 - CESTAT CHENNAI ], where it was held that From the facts explained, it is seen that these are movable items (chairs, tables and other items) which are handed over to the tenants for use by them. The appellant has paid VAT on the consideration received in the said transaction for transfer of right to use the goods. Payment of VAT is not disputed by the department. VAT and Service Tax being excl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Outs. 3. After due process of law, the original authority vide orders impugned herein confirmed the demands along with interest and imposed penalties. Hence, these appeals. 4.1 Ld. Counsel Ms. Vamini J. appeared and argued for the appellant. She submitted that the appellant had entered into two types of agreements one for renting out immovable property and the other for renting out the Fit Outs; as per the agreement, the appellant, at their own cost, has to fully furnish and provide the Fit Outs, utilities, equipment, etc., based on specifications provided and approved by the lessee; as the lease of Fit Out is a transaction in the nature of transfer of right to use goods, the appellant has discharged Sales Tax / VAT and raised invo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... immovable property service . Fit Outs cannot be considered as an immovable property. Further, it is also stated by the appellant that they have discharged applicable Sales Tax / VAT on the consideration received for renting out the said Fit Outs, holding the same as transfer of right to use the goods (deemed sale). 9.1 We find that the very same issue was considered by the Tribunal in the case of M/s. Ascendas IT Park (Chennai) Ltd. (supra). The relevant paragraphs of the said order are reproduced as under: - 4. On behalf of the appellant, Ld. Senior Counsel Shri N. Venkatraman submitted the following oral and written submissions which can be summarized as under : i) In terms of an agreement entered into with M/s.Tamil Nadu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, there is no question of transfer or sale attracting payment of VAT. The fitouts are clearly hired as part of the consideration of the immovable property and the value relating to enjoyment of the use of the fitouts require to be included in the value of the RIP services. The claim of the appellant that they have paid VAT in respect of the consideration received for renting the fit outs cannot be accepted for the reason that payment of VAT on the transaction does not become law that VAT is correctly assessed in respect of the transaction; that the demand raised is legal and proper and the impugned order calls for no interference. 7.3 Demand of service Tax on Fitout charges: The impugned order demands service tax to the tune ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e liable to pay service tax on the rent received for leasing the fit outs. Undisputedly, the appellants have entered into two different agreements for leasing the premises and leasing the fit outs. The fit outs include air conditioners, CCTV, fire alarms, etc. Appellants are discharging VAT on the rent received for leasing the fit outs. They have been discharging VAT even before the services of renting of immovable property became taxable. The decision in the case of Imagic Creative Pvt. Ltd. (supra) has held that service tax and VAT are mutually exclusive. Further, the Tribunal in the case of Ascendas IT Park (Chennai) Ltd. (supra) has considered the very same issue and held that VAT and service tax being mutually exclusive, service tax ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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