Home Case Index All Cases Service Tax Service Tax + HC Service Tax - 2018 (7) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2018 (7) TMI 1135 - HC - Service TaxLevy of Service Tax - Construction of Residential Complex Service - Sub-contract - personal use or not? - Circular dated 24-05- 2010 issued by CBEC - Extended period of Limitation - Section 73(1) of the Finance Act, 1994 - Held that:- There are no substantial question of law arises in the present case requiring consideration. The ‘Residential Complex’ in question was undertaken to be constructed by the Respondent Assessee M/s. Nithesh Estates Limited for ITC Limited under the Contract dated 01/04/2006. It is equally undisputed before us that the construction activity in question was in its entirety sub-contracted by M/s. Nithesh Estates Limited to M/s.Larsen and Toubro Limited. There is no material on record or evidence to indicate that any part of construction activity in question was undertaken by the Respondent Assessee M/s. Nithesh Estates Limited itself. The Revenue cannot be allowed to argue against the legal position rightly explained by the CBE&C itself which can certainly be invoked and applied by this Court for interpreting the provisions of law on the Principles of interpretation of Contemporenea Expositio and the Central Board of Excise and Customs or the highest Administrative body of the Respondent Department itself has interpreted the provisions that the construction activities of this nature where Bi-parte or Tri-partite Agreements are entered into is clearly indicated in the said Circular, which clearly and rightly hold the sub-contractors liable to pay the Service Tax as it is the Sub-contractor who actually undertakes the construction activity - In view of the undisputed factual matrix of the present case, that the sub-Contractor M/s. Larsen and Toubro Limited has duly discharged the obligations to pay the Service tax in the present Contract, we are at a loss to understand how the Revenue could again demand the Service Tax from the Respondent Assessee M/s. Nithesh Estates Limited, the Principal Contractor or the Developer, who did not undertake any construction activity in the present case. The learned Tribunal was perfectly justified and correct in applying the Circular dated 24/05/2010 also, while holding that if the Government of India Department could be treated as using the ‘Residential Complex’ in question constructed by NBCC for its ‘personal use’, how another Corporate body like M/s.ITC Limited in the present case could be denied the benefit of that type of user of ‘Residential Complex’ to be occupied by its Managerial Staff - The law does not envisage any such distinction among the Private Sector Corporate Entities and the Departments of Government or Government Companies or Undertakings. No substantial question of law would really arise in the present case including the question of extended period of limitation under Section 73(1) of the Finance Act, 1994 - When the levy of Service Tax on the Respondent Assessee itself is held to be illegal, the question of availability of extended period of limitation for levying such Service Tax does not arise - appeal being devoid of merit, is dismissed.
|