TMI Blog2019 (3) TMI 1435X X X X Extracts X X X X X X X X Extracts X X X X ..... given supra is very much different - there is no reason to classify the activity under the impugned heading. The term agriculture is of wide compass and it covers horticulture which in turn cover the gardening also. In case of Puran Singh M Verma Vs. CIT the Hon ble Gujarat High Court while interpreting the term agriculture income has held that if the basic operation such as cultivation of land weeding, watering, manuring etc are undertaken, the same would qualify under the term agriculture . In our view looking to the nature of activity performed by Respondent as described above since they have undertaken such operations hence their activity would fall under the definition of Horticulture . Thus, such activities undertaken by the Respondent would not fall under the definition of 'management, maintenance or repair service' - the activity undertaken by the Respondent since falling under the definition of 'Horticulture' which is part of agricultural activity only and not liable for any service tax - demand set aside - appeal dismissed - decided against Revenue. - ST/10330/2018-DB - A/ 10582/2019 - Dated:- 25-3-2019 - MR. RAMESH NAIR, MEMBER (JUDICIAL) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suing suitable insecticides and pesticides, pruning of trees when required. He relies upon the tribunal orders in case of Tarachand Chaudhary 2016 (42) STR 83 (TRI), Suresh Jaiswal 2016 (42) STR 97 (TRI) and Chotelal Virendra Kumar 2016 (41) STR 296 (TRI) to state that in all said cases the assessees entered into contract with Jaipur Development Authority for management and maintenance of parks and roads side plantation and maintenance and the demands were upheld. The assessee has provided services in connection with maintenance and development of garden for different townships, townships situated at Dahej manufacturing division, Ahmedabad Airport, DHA memorial Complex, Chorwad and Airport which are public places. The work is not related to public park and it is not meant for re-creation. He submits that since the garden, parks are immovable property, hence the maintenance of same would fall under the impugned category. That post 01.07.2012 the services provided by the Respondent are not related to agriculture or related services. The agriculture is cultivation of plants for food as may be found from Section 65B (3) of the Finance Act, 1994. The activities carried out by the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e consequences would follow. 4. Shri Vishal Agarwal, Ld. Advocate appearing for the Respondent submits that the activity of the Respondent are Horticulture activity and hence not liable for tax. He relies upon the definition of Horticulture as given in Mitra‟s legal and Commercial Dictionary, 6th Edition, The New Shorter Oxford English Dictionary on Historical Principles, Volume 1, Bloomsbury English Dictionary, new Edition, Capital‟s Legal Dictionary, Vol I, The Encyclopedic Law Lexicon, Vol- 2 by Justice C.K. Thakker and the Random House Kernerman Websters‟s College Dictionary to state that Horticulture is cultivation of a garden, orchard, nursery and the flowers, fruits, vegetables or ornamental flower and art of gardening. He relies upon Hon‟ble Apex Court judgment in case of Kasturi (Dead) By Lrs. Vs. Gaon Sabha 1989 (4) SCC 55 that Horticulture means cultivation of garden and the garden means an area of land used for cultivation of ornamental plants, herbs, fruit, vegetables, trees etc. He also relies upon judgment in case of Sheikh Hidayat Ali Vs. Kumar Kalanand Singh 1913 (17) CLJ 411 and CIT Vs. Raja Benoy Kumar Sahas 1957 AIR 768 to state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 07.2012 we find that the services were taxable under a particular head. The Management, Maintenance and Repair Services were defined under Section 65 (64) of the Finance Act, 1994 as under: (64) management, maintenance or repair Services means any service provided by (i) Any person under a contract or an agreement; or (ii) a manufacturer or any person authorised by him, in relation to, - (a) Management of properties, whether immovable or not; (b) Maintenance or repair of properties, whether immovable or not; or (c) maintenance or repair including reconditioning or restoration, or servicing of any goods, excluding a motor vehicle.] [Explanation. - For the removal of doubts, it is hereby declared that for the For the purpose of clause,- a) goods includes computer software; b) properties includes information technology software;] 6. We find that the above definition nowhere leads to the inference that the activity of the Respondent falls under the above description of service. The property involve should either be movable or immovable property. Section 3 of the Transfer of Property Act, 1882 defines immovable property whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : The science and art of growing fruits, vegetables, flowers or ornamentals plants; that department of the science of agriculture which relates to the cultivation of gardens or orchards, including the growing of vegetables, fruits, flowers and ornamental shrubs, and trees,. The New Shorter Oxford English Dictionary on Historical Principles, Volume 1: Horticulture: The art of garden cultivation or management. Bloomsbury English Dictionary, New Edition: Horticulture: The cultivation of a garden, orchard or nursery; the cultivation of followers, fruits, vegetables, or ornamental flowers. The science and art of cultivating such plants. Capital s :Legal Dictionary, Volume 1: Horticulture: The science and art of growing fruits, vegetables, flowers, or ornamental plants. The Encyclopedic Law Lexicon, Volume 2 by Justice CK Thakker: Horticulture : Horticulture means the art of gardening. The Random house Kernerman Webster s college Dictionary: Horticulture: The science or art of cultivating flowers, fruits, vegetables or ornamental plants, esp. In a garden, orchard, or nursery. Thus the term agricu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is for educational purpose cannot be brushed aside on this ground. The said guide once classified the service to be exempted cannot be made irrelevant. The Hon‟ble Calcutta High Court in case of Sheikh Hidayat Ali Vs. Kumar Kalanand Singh 1913 (17) CLJ 411 has interpreted 'Horticulture' to mean - ' Here again, it must be pointed out horticulture means the cultivation of garden or the science of cultivating, or managing garden, including growing of flowers, fruits and vegetable‟. 8. In view of above discussion and findings we thus hold that the activity undertaken by the Respondent since falling under the definition of 'Horticulture' which is part of agricultural activity only and not liable for any service tax. We therefore hold that the respondent is not liable for payment of service tax on activity undertaken by them. We also find that the demands were raised by invoking extended period. However in the present case the issue involved is of interpretation. It is coupled with fact that even as per the CBEC Guide the service tax was not payable. Also the tribunal judgment on similar issue was in assessee s favour. The revenue has not adduced any ..... 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