2025 (5) TMI 1829 - AT - Service Tax

Demand of service tax on construction activities - Commercial or Industrial Construction service - construction services with respect to a building or buildings having more than 12 residential units - taxability of construction of houses for Avas Vikas Parishad under the scheme of Manyavar Kashiram Shahri Garib Avas Yojna under Welfare Schemes - Taxability of Construction Services Provided to Educational Institutions - HELD THAT - We observe that the Revenue in its present appeal appears to dispute the well-reasoned and speaking Order passed by the Adjudicating Authority without bringing any evidence on record and without providing any cogent reasoning. We do not find any merit in such approach. As per the documents brought on record before us and in view of the above discussion we agree with the Adjudicating Authority that the assessee was involved in the construction of single houses instead of a residential complex. Accordingly we find that the issue of taxability of such construction of individual houses has been settled in the case of Macro Marvel Projects Limited. 2008 (9) TMI 80 - CESTAT CHENNAI which had been later affirmed by the Hon ble Supreme Court. Further the ratio laid down in the Marco Marvel Projects case was also followed by the Tribunal in A.S. Sikarwar Vs. Commissioner of Central Excise Indore 2012 (11) TMI 1000 - CESTAT NEW DELHI . In the present case we find that the assessee entered into contract with Avas Vikas Parishad to construct low cost housing under the scheme of Manyavar Kashiram Shahri Garib Avas Yojna . Such houses constructed by assessee were not sold but were rather allotted by District Magistrate for a 30 year lease to economically weaker sections/peoples purely in public interest. We find that such fact was not disputed by the Revenue in its appeal. The existence of a composite contract is immaterial to the issue at hand. Irrespective of the composite contract the definition of Residential Complex remains unchanged and the houses constructed by the assessee fall under the exclusion of personal use provided therein. In the present case the assessee is not availing any exemption provided in an exemption notification. Instead the construction services by the assessee involving single houses used for personal residential use is out of the scope of the definition of Residential complex and thereby is not taxable under the head of Construction of Complex service. In light of the matter being that of pre-negative list regime since the service in question does not fall under any head of taxable service specified in the Finance Act 1994; no service tax would be applicable. The name of the scheme under which the houses are constructed is immaterial. Accordingly we find that the work undertaken by assessee for constructing low cost housing for Avas Vikas Parishad is out of the purview of Service tax. We do not find any merit or logic in the Revenue s argument that such case is not applicable herein in view of the Departmental appeal filed against it which was withdrawn due to monetary limits. Once a well-reasoned judgement has been passed by the Tribunal in the case of CCE Allahabad Vs. Ganesh Yadav 2017 (5) TMI 1251 - CESTAT ALLAHABAD the same cannot be disregarded based on an Appeal filed against such judgement unless and until the judgement is later stayed/overturned by a higher court. Since the Tribunal s decision has not been overturned by a higher court it is a binding precedent that must be followed by the Revenue in similar facts and circumstances like in the present case. Further we observe that a similar matter of construction by a assessee under Manyaver Kanshiramji Shahri Garib Awas Yojana was taken into consideration by this Tribunal in the case of NCR Builders Pvt. Ltd. Vs. Commissioner Of C. EX. S.T. 2016 (11) TMI 1555 - CESTAT ALLAHABAD . Thus conclude that the service provided by assessee of construction of houses to Avas Vikas Parishad LIC UPRNN etc. are out of the purview of service tax regime. Accordingly we uphold the dropping of demand in the Order-in-Original passed by the Adjudicating Authority and disallow the Appeal filed by the Revenue. Next we move onto the second issue of the demand on construction services provided by the assessee to educational institutions like IIT JK Educational Foundation Super house Education Centre etc. relating to construction of buildings i.e. hostels medical college lab etc. and repairing activities. We observe that the Adjudicating Authority has thoroughly perused the documents brought on record by assessee and arrived at a correct conclusion regarding the nature of the concerned educational institutions. Before going into the issue of taxability we find it prudent to consider the definition of Commercial or Industrial Construction as provided under Section 65(25b) of the Finance Act 1994. The Hon ble Supreme Court in the case of M/s Msco. Pvt. Ltd. Vs. UOI 1984 (10) TMI 44 - SUPREME COURT has clearly held that the term industry means a place where the process of manufacture or production of goods is carried on and institutions like hospitals educational charitable organizations etc. would not fall within the ambit of the same. We find that even if the definition of industry as under the Industrial Disputes Act 1947 is relied upon as contended by Revenue the concerned educational institutions would be excluded from its ambit. We note that no submission has been made by the Revenue in its Appeal in this regard. We find that in light of Circular No.80/10/2004-ST it is a settled issue that educational institutions like IIT JK Educational Foundation etc. which are established for educational charitable purposes are not primarily used occupied or engaged in commerce or industry and would not be taxable under the head of Commercial or Industrial Construction service. Such Circular is binding on the Revenue and we do not find any reason to deviate from the decision laid down by this Tribunal on this issue. Accordingly we uphold the Adjudicating Authority s decision of non-taxability of the construction services prided by assessee to education institutions like IIT JK Educational Foundation etc. Thus we do not find any occasion to interfere with the impugned order and the same is sustained. The appeal filed by the Appellant Revenue is dismissed. Cross objection also gets disposed of.

Summary

The core legal questions considered by the Tribunal in this case are:

1. Whether the construction services provided by the assessee for individual houses under welfare schemes such as the 'Manyavar Kashiram Shahri Garib Avas Yojna' fall within the taxable ambit of 'Construction of Complex' or 'Commercial or Industrial Construction' services under the Service Tax regime.

2. Whether the construction services provided by the assessee to educational institutions such as IIT, JK Educational Foundation, and others, involving buildings like hostels, medical colleges, and laboratories, are taxable under the 'Commercial or Industrial Construction' service category.

Issue 1: Taxability of Construction Services for Individual Houses under Welfare Schemes

Relevant Legal Framework and Precedents: The Tribunal examined definitions under the Finance Act, 1994, specifically Section 65(30a) defining 'Construction of Complex' and Section 65(91a) defining 'Residential Complex'. The latter defines a residential complex as a building or buildings having more than twelve residential units along with common areas and facilities, but excludes complexes constructed for personal use. The Explanation clarifies that 'personal use' includes permitting residence by another person on rent or without consideration.

Precedents relied upon include the Tribunal's decisions in M/s Macro Marvel Projects Ltd. vs. CST and A.S. Sikarwar vs. Commissioner of Central Excise, which held that construction of single houses for residential purposes is outside the scope of 'Construction of Complex' service and thus not taxable. The Tribunal also referenced CCE, Allahabad vs. Ganesh Yadav and NCR Builders Pvt. Ltd. vs. Commissioner of Central Excise & Service Tax, Ghaziabad, which similarly excluded low-cost housing for economically weaker sections from service tax liability.

Court's Interpretation and Reasoning: The Tribunal noted that the Revenue failed to provide evidence that the construction involved buildings with more than twelve residential units or common areas/facilities as defined under 'Residential Complex'. The existence of a composite contract was held immaterial to the applicability of the definition. The Tribunal emphasized that the houses were constructed under a welfare scheme for economically weaker sections, allotted on a 30-year lease without sale, implying personal use and public interest.

The Tribunal found that the Revenue's reliance on the composite contract and the withdrawal of an appeal against a precedent decision did not undermine the binding nature of the Tribunal's prior rulings. The Tribunal also rejected the Revenue's contention that exemption applied only under the Jawaharlal Nehru National Urban Renewal Mission, clarifying that the construction of single houses for personal residential use is outside the taxable service category irrespective of any exemption notification.

Key Evidence and Findings: The assessee submitted multiple letters and certificates from competent authorities, including executive engineers and government departments, confirming the nature of the housing as single-unit, low-cost houses allotted free of cost or on lease to economically weaker sections. These documents supported the conclusion that the construction was for personal use and not commercial or industrial purposes.

Application of Law to Facts: Applying the statutory definitions and precedents, the Tribunal concluded that the construction of individual houses under the welfare scheme does not constitute a 'Residential Complex' or 'Commercial or Industrial Construction' service taxable under the Finance Act. The personal use exclusion applied squarely.

Treatment of Competing Arguments: The Tribunal dismissed the Revenue's argument that the composite contract negated the personal use exclusion, finding no legal basis for this. The Revenue's failure to produce evidence or cogent reasoning led to rejection of its appeal on this issue.

Conclusion: The Tribunal upheld the Adjudicating Authority's order dropping the service tax demand on construction of individual houses under the welfare scheme, confirming that such services are not taxable.

Issue 2: Taxability of Construction Services Provided to Educational Institutions

Relevant Legal Framework and Precedents: The Tribunal examined the definition of 'Commercial or Industrial Construction' under Section 65(25b) of the Finance Act, 1994, which requires that the building or civil structure be used, occupied, or engaged primarily in commerce or industry to attract service tax. The Tribunal also considered the Supreme Court's judgment in M/s Msco. Pvt. Ltd. vs. Union of India, which clarified that the term 'industry' in tax statutes cannot be equated with its broader meaning under the Industrial Disputes Act, 1947, and that educational and charitable institutions do not constitute 'industry' for such purposes.

Additionally, the Tribunal relied on MF (DR) Circular No.80/10/2004-ST dated 17.09.2004, which states that constructions for institutions established solely for educational, religious, charitable, health, sanitation, or philanthropic purposes and not for profit are not taxable. The Tribunal also referenced a recent decision of the Allahabad Tribunal in CCE & ST vs. Shri Kripa Shankar Yadav, which upheld non-taxability of construction services provided to educational institutions like IIT, Kanpur.

Court's Interpretation and Reasoning: The Tribunal found that the educational institutions involved were non-profit and charitable in nature, as evidenced by certificates under Section 12 of the Income Tax Act and other documentary proof submitted by the assessee. The Tribunal held that such institutions are not 'industry' within the meaning relevant for service tax, and their buildings are not used primarily for commerce or industry.

The Tribunal rejected the Revenue's contention that the Supreme Court judgment in Msco. Pvt. Ltd. was inapplicable because it pertained to hospitals, emphasizing that the reasoning extends to educational and charitable institutions as well. The Tribunal further noted that even under the Industrial Disputes Act definition, educational and charitable institutions are explicitly excluded from the definition of industry.

Key Evidence and Findings: The assessee produced multiple certificates confirming the charitable and non-profit status of the educational institutions, land allotment letters specifying educational use, and legal opinions confirming non-applicability of service tax. The Adjudicating Authority had thoroughly examined these documents and reached the conclusion of non-taxability.

Application of Law to Facts: Applying the statutory definition and binding precedents, the Tribunal concluded that construction services provided to educational institutions not engaged in commerce or industry are outside the taxable ambit of 'Commercial or Industrial Construction' services.

Treatment of Competing Arguments: The Tribunal dismissed the Revenue's argument that the Adjudicating Authority failed to properly examine profit motive as vague and unsupported by evidence. The Tribunal emphasized that the Revenue did not contest the charitable status or non-profit nature of the institutions in its appeal.

Conclusion: The Tribunal upheld the Adjudicating Authority's order holding that construction services rendered to educational institutions are not taxable under the Service Tax regime.

Significant Holdings:

On the first issue, the Tribunal held:

"The assessee was involved in the construction of single houses instead of a residential complex. Accordingly, we find that the issue of taxability of such construction of individual houses has been settled in the case of Macro Marvel Projects Limited..., which had been later affirmed by the Hon'ble Supreme Court."

Further, the Tribunal emphasized:

"The houses constructed by the assessee for Avas Vikas Parishad... were allotted by District Magistrate for a 30 year lease to economically weaker sections/peoples purely in public interest under the scheme... Such construction would fall squarely under the ambit of the exclusion for personal use provided in the definition of Residential Complex."

On the second issue, the Tribunal stated:

"It is a settled legal issue that the definition of industry as provided in the Industrial Disputes Act, 1947... is not applicable in Service tax regime. Institutions like hospitals, educational, charitable organizations etc. would not fall within the ambit of the same."

And:

"For an activity to fall under the ambit of Commercial or Industrial Construction service, the concerned building or civil structure constructed should be used, occupied or engaged in commerce or industry... Educational institutions like IIT, JK Educational Foundation etc. which are established for educational, charitable purposes are not primarily used, occupied or engaged in commerce or industry and would not be taxable."

Finally, the Tribunal concluded:

"The appeal filed by the Appellant Revenue is dismissed. Cross objection also gets disposed of."