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2014 (1) TMI 1203 - AT - Service TaxDemand of service tax - Imposition of equivalent penalty u/s 78 - Renting of immovable property - Whether long term leases of immovable property are outside the purview of the taxable service enumerated and defined in Section 65(105) (zzzz) - Held that:- On a true and fair construction of this provision it is clear that a service provided in relation to renting of immovable property for use in the course of or in furtherance of business or commerce is the taxable service. The provision does not restrict the ambit of the taxable service to only short term leases nor identifies or classifies leases in terms of the duration. A lease is defined in Section 105 of the Transfer of Property Act, 1882, as transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crop, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms. In the absence of any restrictive signification in Section 65 (105)(zzzz), of a legislative intent to exclude long term leases of immovable property from the purview of the taxable service defined and enumerated in said provision, we find no authority to hold that long term leases (so-called) are outside the purview of the taxable service. Renting of vacant land - Held that:- renting of vacant land by way of lease or licence (irrespective of the duration or tenure), for construction of a building or a temporary structure for use at a later stage in furtherance of business or commerce is a taxable service only from 1.7.2010, and not so, earlier to this date. Since the show cause notice did not specifically demand nor the assessee care to furnish details and particulars of the lease transactions and of the several categories of receipts, in respect of vacant lands leased by it for business or commercial purposes; nor had asserted in defence, which of the leases were not in furtherance of business or commerce; and since the adjudicating authority also did not, in the circumstances, advert to this aspect of the matter, we are not inclined to go into the contention (urged in oral arguments) that part of the lease transactions were for furtherance of purposes other than business or commerce. If any such transactions of the appellant/assessee are in respect of leases for non-commercial or non-business purposes, since we are remitting the matter, the Authority shall consider this aspect of the matter. The appellant may submit clear and a categorical pleadings, by way of detailed written submissions, coupled with the relevant transactional documents in support of any assertion, that some of its leases were in respect of non-business or non-commercial purposes. Appellant is seen to have inadequately and incoherently pleaded its defence and claims for exclusion of some of its receipts, from the ambit of the gross consideration received from the taxable "renting of immovable property" transactions/leases; such as industrial or commercial penalty; industrial or commercial forfeiture, building plan fee, advertisement charges, interest on lease rent etc; on the ground that these are not legitimate components of considerations received for the taxable "renting of immovable property" service - adjudication order is quashed and matter remitted to the said authority for passing a fresh adjudication order, commencing from the stage subsequent to the show cause notice - Decided in favour of assessee.
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