TMI Blog2019 (7) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... they have not been given enough opportunity to explain, the department contends that no proper bifurcation was given. The appellants submitted that vide letter, dated 24/7/12, they have requested that four weeks time to file their submissions. Oder was passed on 30/8/2012 before they submitted their records - It is not forthcoming from the OIO whether the appellants were put to sufficient notice before finalisation. This is certainly against the principles of natural justice. It is quite possible that contradictory and different figures are submitted at different times - Considering these circumstances and facts of the case, we find that the matter requires going back to the original authority for reconsideration of the issue afresh in the light of submissions of the appellants, in the interest of justice. Appeal allowed by way of remand. - ST/27959/2013-DB; ST/28153/2013-DB; ST/28154/2013; ST/28166/2013 - Final Order No. 20500 - 20503/2019 - Dated:- 28-6-2019 - SHRI S.S GARG, JUDICIAL MEMBER SHRI P. ANJANI KUMAR, TECHNICAL MEMBER Mr. Surya Kanth, CA - For the Appellant Mr. Gopakumar, Jt. Commissioner (AR) - For the Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Time for Advertisement services; Renting of its premises like Garuda Mall; renting parking space etc. 2.1. Regarding the service alleged to have been rendered in respect of lending space for advertisement, he submits that Service Tax Department had inspected the business premises and had opined that the collection of LICENCE FEE is nothing but providing the Services and same is taxable as per Section 65 (105); their activity is not Commercial in nature and no profit motive is involved; collection of LICENCE fee is purely used for the General public for the development of the Urban infrastructure and for similar purposes; the space for Advertisement for BBMP doesn t get any income from hoardings as the as the hoardings are used for display of social awareness messages; Appellant has given contract to vantage advertisement to display social message 75% of the same is used and 25% is used for other purpose but nothing is charged for the same. Learned Counsel further submits regarding the rental Income from Garuda Mall, that the land belongs to the Appellant the building is constructed on the land. The Service tax is payable on 50:50%. This aspect has not been considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the appellant cannot be accused of suppressing the relevant information from the Department as during the period of dispute there was doubt about the levy of service on the renting of immovable property till the dispute was put to an end by retrospective amendment and that longer limitation period under proviso to section 73(1) would not applicable and thus, penalty u/s 78 of the Finance Act also would not be attracted. 3. Learned Authorised Representative submits, in respect of the appeals ST/27959/2013, ST/28153/2013, ST/28154/2013, ST/28166/2013, regarding sale of space on the hoardings that the argument of the appellants on validity of tax is not in dispute. He submits that on investigation , it was found that M/s. BBMP owns about 13 hoardings which have been given under contract to M/s. Vantage Advertising to display social awareness messages of BBMP and advertisements of their choice; in respect of all other private hoardings and advertising spaces in Bangalore city, BBMP collects annual advertisement taxes and a Licence fee(once in three years); Hence it was evident that BBMP had sold space on the hoardings to M/s. Vantage Advertising and others for displ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in conjunction. As we have explained that service tax is associated with value addition as evolved by the judgments of the Apex Court, the submission that the base of the said decisions cannot be taken away by a statutory amendment need not be adverted to. Once there is a value addition and the element of service is involved, in conceptual essentiality, service tax gets attracted and the impost gets out of the purview of Entry 49 of List II of the Seventh Schedule of the Constitution and falls under the residuary entry, that is, Entry 97 of List I. He relied upon. (i). Home Solutions Retails (India) Ltd. Vs Union of India (2011(24) STR129 (Del) (ii). Utkal Buliders Limited Vs Union of India (2011(22) STR 257(Ori) (iii). Shubh Timb Steels Ltd Vs Union of India and Another (2011(20) STR737 (P H) (iv). R.R.Ahuja Vs Union of India (2013(29) STR127 (M.P.) (v). Mohan Lal Goyal Vs Union of India (2015(37) STR 981 (P H) (vi). Purushottam Das Malpani Vs Union of India (2015(39) STR579 (Raj) (viii). G.V.Matheswaran Vs Union of India (2015(37) STR881 (Mad) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the shop owners. We, therefore, are of prima facie view that Service Tax is payable on this parking income pertaining to the parking service provided to shop owners who own shops in the mall. Learned AR submits that the appellant has not staked the claim of exemption from parking rent during the adjudication proceedings. Moreover, there is no break-up of the parking rent derived from the shop owners in the Garuda Mall (which amounts to rent for the furtherance of business) and the rent received from visitors and shoppers, so as to claim relief under the clause (iv) (c) of the Explanation 1 to the definition of the classification of services from 1-6-2007 to 30-6-2010. As this was not provided in the original proceedings, the contention of the assesse may not be entertained. 6. Heard both sides and perused the records of the case. The main issue that requires consideration in this case is to decide whether the activity of appellants in renting out immovable property, space for advertising, space for parking etc attract Service Tax during the relevant periods of the demand. The appellants mainly contend on the issue that Appellant is a local body created ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra). There is dispute regarding the quantification of duty and the nature of renting of immovable property and leasing out/sale of space for advertising as to whether are not for the purposes of furtherance of business interest or otherwise. While the appellants contend that they have not been given enough opportunity to explain, the department contends that no proper bifurcation was given. The appellants submitted that vide letter, dated 24/7/12, they have requested that four weeks time to file their submissions. Oder was passed on 30/8/2012 before they submitted their records. It is not forthcoming from the OIO whether the appellants were put to sufficient notice before finalisation. This is certainly against the principles of natural justice. Further, as submitted by the appellants, there are four divisions and different officers, as a result of change/transfer, submitted different figures. Therefore, it is quite possible that contradictory and different figures are submitted at different times. Considering these circumstances and facts of the case, we find that the matter requires going back to the original authority for reconsideration of the issue afresh in the light of subm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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