2008 (9) TMI 80 - AT - Service Tax

Demand on the amount collected by the appellants from their clients as consideration for construction and transfer of residential houses - scope of construction of complex - construction of residential complex having not more than 12 residential units is not sought to be taxed - Admittedly in the present case the appellants constructed individual residential houses each being a residential unit held that construction of individual residential units are not subject to levy of service tax

Summary

1. ISSUES PRESENTED and CONSIDERED

- Whether the activity of construction and transfer of individual residential houses by the appellants attracts service tax under the head "construction of complex" service as defined in Section 65(30a) of the Finance Act, 1994 for the period 16-6-2005 to 30-11-2005.

- Whether the appellants' activity falls within the ambit of 'works contract' service taxable from 1-6-2007 under Section 65(105)(zzzza) of the Finance Act, 1994, and if so, whether service tax can be levied retrospectively for the period prior to 1-6-2007.

- Legality of the penalty imposed under Section 76 of the Finance Act, 1994 for non-payment of service tax on the said activity.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Applicability of Service Tax under "Construction of Complex" Service (Section 65(30a)) for construction of individual residential houses during 16-6-2005 to 30-11-2005

Relevant Legal Framework and Precedents: Section 65(30a) of the Finance Act, 1994 defines "construction of complex" service and restricts the levy of service tax to construction activities involving a "residential complex" as defined under Section 65(91a). The definition of "residential complex" mandates that the complex must comprise more than twelve residential units along with common areas and facilities, and the layout must be approved by an authority under law.

Court's Interpretation and Reasoning: The Tribunal examined the statutory definitions and found that the appellants constructed individual residential houses, each constituting a single residential unit, and not a "residential complex" comprising more than twelve units. The photographs and evidence on record confirmed this fact. The Tribunal emphasized that the legislative intent was to exclude individual residential units from the scope of taxable "construction of complex" service.

Key Evidence and Findings: The appellants' construction involved individual residential houses, not a complex with more than twelve units. The authorities below failed to consider the statutory definition properly and levied service tax erroneously.

Application of Law to Facts: Since the appellants' activity did not meet the statutory definition of "residential complex," the demand for service tax under Section 65(30a) was not sustainable.

Treatment of Competing Arguments: The Revenue contended that the demand was justified, but the Tribunal rejected this, noting that the authorities below ignored the clear statutory definitions. The Tribunal declined the Revenue's suggestion for remand, holding that the lower authorities had already sustained the demand without proper examination.

Conclusion: The Tribunal set aside the service tax demand under "construction of complex" service for the period in question, holding that individual residential units are excluded from the taxable ambit.

Issue 2: Applicability of Service Tax under 'Works Contract' Service (Section 65(105)(zzzza)) from 1-6-2007 and Retrospective Levy

Relevant Legal Framework and Precedents: The Explanation to Section 65(105)(zzzza) introduced from 1-6-2007 includes "construction of a new residential complex or a part thereof" within the scope of the 'works contract' service. However, the definition of "residential complex" under Section 65(91a) remains unchanged.

Court's Interpretation and Reasoning: The Tribunal observed that even under the 'works contract' service definition, the phrase "residential complex or a part thereof" must be interpreted in light of the statutory definition of "residential complex." Individual residential units cannot be construed as a "residential complex or a part thereof." Therefore, the appellants' construction activity does not fall within the taxable ambit of 'works contract' service even post 1-6-2007.

Key Evidence and Findings: The Tribunal relied on the statutory definitions and the nature of the appellants' construction activity to conclude that the 'works contract' service does not apply.

Application of Law to Facts: Since the appellants' activity does not qualify as construction of a residential complex or part thereof, service tax under 'works contract' service is not applicable retrospectively or otherwise.

Treatment of Competing Arguments: The appellants' plea that service tax is not leviable prior to 1-6-2007 was accepted. The Tribunal clarified that their observations on 'works contract' service are specific to this appeal and not intended as binding precedent.

Conclusion: The Tribunal rejected any retrospective levy of service tax under the 'works contract' service for the appellants' construction activity.

Issue 3: Penalty Imposed under Section 76 of the Finance Act, 1994

Relevant Legal Framework: Section 76 authorizes imposition of penalty for failure to pay service tax.

Court's Interpretation and Reasoning: Since the Tribunal held that no service tax was payable, the penalty imposed on the appellants for non-payment of service tax was also unsustainable.

Application of Law to Facts: The penalty was set aside as the foundational demand for service tax was quashed.

Conclusion: The penalty under Section 76 was also set aside along with the service tax demand.

3. SIGNIFICANT HOLDINGS

"It is abundantly clear from the above provisions that construction of residential complex having not more than 12 residential units is not sought to be taxed under the Finance Act, 1994."

"By no stretch of imagination can it be said that individual residential units were intended to be considered as a 'residential complex or a part thereof'."

"The authorities below chose to sustain the demand of service tax raised in the show-cause notice, regardless of the fact that construction of individual residential units was not included within the scope of 'construction of complex' defined under Section 65(30a) of the Finance Act, 1994."

Core principles established include the strict interpretation of statutory definitions in tax statutes, particularly that service tax under "construction of complex" applies only to complexes with more than twelve residential units, excluding individual residential houses. The judgment confirms that retrospective application of 'works contract' service tax provisions cannot be extended beyond their effective date, and that penalty cannot be imposed when the underlying tax demand is unsustainable.

Final determinations:

• The demand of service tax under "construction of complex" service for construction of individual residential houses during 16-6-2005 to 30-11-2005 is set aside.
• Service tax under 'works contract' service from 1-6-2007 does not apply retrospectively to the appellants' activities.
• The penalty under Section 76 imposed for non-payment of service tax is quashed.