TMI Blog2020 (2) TMI 349X X X X Extracts X X X X X X X X Extracts X X X X ..... different from the service of management maintenance and repairs . We are not inclined to accept this distinction because as far as the business activity is concerned qua the appellant, it is operation of the parking area but when this activity is examined qua the mall owners they are providing the service of management, maintenance or repairs to the mall owners. Extended period of limitation - HELD THAT:- There was a clear mis-declaration and wilful suppression in as much as the appellant has suppressed the income of parking fees in the relevant returns with an ulterior motive to evade the service tax. They have wilfully designed their mode of operation to evade the service tax - the extended period is invokable in the case. The levy of service tax on the activity under management, maintenance or repair service is upheld - However, the appellant will be entitled to avail Cenvat credit of service tax paid by the service providers and cum duty benefit - The penalties under Section 78 of Finance Act, 1994 need to reworked accordingly - case remanded back to the Adjudicating Authority to re-determine the taxable demand, interest and penalties - appeal allowed partly by way ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever name it may be called to the Mall owners for operating the parking area. The appellant asserts that the only interest of Mall owners is that there should be a hassle free parking and that the space available for parking should be utilized to the maximum possible extent so that there is adequate parking space for the vehicles, otherwise it will affect the popularity of the Mall and may cause traffic chaos in nearby areas of the Mall which may affect the business of the shops located in the Mall and ultimately the Mall owners. No service tax was paid by the appellant on the income generated from the parking fees. An audit of the appellant was conducted by the service tax department and on the basis of the audit, the above three show cause notices were issued to the appellants alleging that the activity of the appellant amounted to management, maintenance or repairs which was leviable to service tax as per the provisions of Finance Act, 1994. The allegations made in the show cause notice were confirmed vide the impugned Order-in-Original against which appellant is in appeal before the Tribunal. 3. In the appeal memorandum and submissions made during the course of hearing by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant further argued that Revenue cannot guide any person as to how it should conduct its business. That it was mall owner's discretion that they did not want to charge any consideration against providing parking space to the appellant. They relied upon the case law in Hero Cycles (P) Ltd. versus C1T (Central), Ludhiana, 2015-TIOL-280 SC-IT and SA Builders Ltd. versus CIT (Appeals), Chandigarh Anr., 2006-TIOL-179-SC-IT. The learned Counsel further claimed that operation activity is different from management and that the appellant is operating the parking area and not managing the same for the mall owners. They are also in arrangement with the mall owners for operating, managing and letting out of kiosks, space etc. for the purpose of advertisements in the respective five malls i.e. :- (a)The Metropolitan, Gurgaon (b)The Plaza Gurgaon (c)MGF Megacity, Gurgaon (d)The Metropolitan, Saket, New Delhi and (e)The Metropolitan, Jaipur. Appellant have been paying monthly charges to owner of Metropolitan Mall, Gurgaon and The Plaza Mall, Gurgaon only and no charges have been paid to the developers of the three malls towards temporary space utilized. They are paying service tax und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight of space, including parking area for collecting income earned from the parking fees. He further argued that it is admitted that parking space in the malls belong to the mall owners and it cannot be accepted that the applicant has been given permission to use such valuable space without any consideration. It is also an admitted fact that the applicant is incurring huge liabilities in managing and maintaining the parking space including the costs paid to the third party agency through which the appellant was managing the parking facilities. As the third party agency was paying service tax on the invoices issued to the appellant, the appellant in turn was also liable to pay service tax for the same service which it was providing to the mall owners for which the consideration was in terms of receipts of the parking fees collected from the visitors. 5. We have carefully gone through the rival arguments and have perused the record of the appeal. 6. To begin with, we cannot accept the appellant s plea that huge parking space area was given to the appellant without any agreement with respect to financial consideration or without an agreement with respect to contingent liabiliti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al to the gross amount charged. (3) The gross amount charged for the taxable service shall include any amount received towards the taxable service before, during or after provision of such service. (4) Subject to the provisions of sub-sections (1), (2) and (3), the value shall be determined in such manner as may be prescribed. Explanation. - For the purposes of this section, - (a) consideration includes - (i) any amount that is payable for the taxable services provided or to be provided; (ii) any reimbursable expenditure or cost incurred by the service provider and charged, in the course of providing or agreeing to provide a taxable service, except in such circumstances, and subject to such conditions, as may be prescribed; (iii) any amount retained by the lottery distributor or selling agent from gross sale amount of lottery ticket in addition to the fee or commission, if any, or, as the case may be, the discount received, that is to say, the difference in the face value of lottery ticket and the price at which the distributor or selling agent gets such ticket. 7. Section 67(1)(i) clearly stipulates that where the consideration is not wholly or partly c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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