TMI Blog2021 (3) TMI 268X X X X Extracts X X X X X X X X Extracts X X X X ..... nce, the contribution of the department in this regard has no legs to stand. Appeal allowed - decided in favor of appellant. - Service Tax Appeal No.10066 of 2017, 10265 of 2019, 10039 of 2020 - A/11006-11008/2021 - Dated:- 5-3-2021 - MR. RAMESH NAIR, MEMBER (JUDICIAL) AND MR. RAJU, MEMBER (TECHNICAL) Shri. Paritosh Gupta, Advocate for the Appellant Shri Hemant Kumar Jain, Assistant Commissioner (AR) for the Respondent ORDER The brief facts of the case are that the appellant M/s Gujarat Eco Textile Park Limited floated integrated textile park under the scheme of integrated textile parks (SITP) formed by the Government of India (Ministry of Textiles). The appellant is Special Purpose Vehicle (SPV) a public private partnership. The appellant SPV was formed for acquiring land and setting up infrastructure for establishing textile parks wherein different member textile unit could operate. The Ministry of Textiles had engaged IL FS as Project Management Consultant (PMC) for implementation of scheme. The said PMC reports to Ministry of Textiles. Ministry of Textiles supervises the operation of the parks through said PMC. The SPV also consists of representative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iscellaneous services and appropriate service tax has been paid by the appellant. Now the Revenue sought to demand service tax on the non-refundable contribution made by the member units towards the expenditure of the park for developing and constructing the infrastructure under the category of renting of immovable property service . The case of the department is that rental amount is collected in guise of non-refundable contribution which is nothing but service charge against renting of immovable property service hence, liable to service tax. 2. Shri Paritosh Gupta, Learned Counsel appearing on behalf of the appellant, at the outset, submits that the issue in the present case is absolutely identical to the case of the appellant which was decided by this Tribunal vide Order No. A/11729/2019 dated 12/09/2019. He submits that in the present case there is no change of circumstances and the fact the only difference is the present demand is periodical for the subsequent period, therefore, the issue remain the same. He submits that in view of the said judgment of the Tribunal demand in the present case is not sustainable. In addition, he further submits that service tax is even other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant company on 10.01.2006. The first share subscription agreement and lease deed was executed with one of member units, namely, M/s Radiance Spun Bond Ltd. on 27.12.2006. It is seen that the levy of service tax was not there during this period when the entire scheme was devised and the first share subscription agreement was entered into. 4.2 Service tax was introduced on renting of immovable property w.e.f. 01.06.2007. At the material time vacant land was not laible to service tax. In this regard CBEC vide DoF No. 334/01/2007-TRU dated 28.02.2007 had clarified as follows: 6.3 Renting of immovable property service : Renting of immovable property for use in the course or furtherance of business or commerce [section 65(105)(zzzz)] is the taxable service. Renting includes letting, leasing, licensing or other similar arrangement. The contract is for right-to-use an immovable property for a consideration. Immovable properties excluded from the scope of this service are : residential properties residential accommodation such as hotels, hostels, boarding houses, holiday accommodation, tents, camping facilities vacant land solely used fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f service tax on vacant land prior to 08.05.2010. 4.4 Ld. Counsel has pointed out that there was no levy of service tax under the head of renting of immovable property service till 01.06.2007 and on vacant land till the introduction of Finance Act, 2010 on 08.05.2010. The agreement and the mechanism for the purpose of collection of various amounts from the Member Units under the Scheme was devised almost one and half year before levy of Renting of Immovable Property Service and 4 years prior to the introduction of the said service tax on vacant land. The said exercise was conducted in overall supervision of Ministry through IL FS, the PMC appointed with approval of Ministry. In these circumstances there cannot be any intention on the part of the appellant to disguise rent as any other recovery. We find substantial merit in the argument of the appellant that the entire scheme was devised and executed much before the levy of service tax was introduced under the head of renting of immovable property service and therefore, the allegation that the appellant disguised the receipt of rent as non-refundable contribution is totally misplaced. A perusal of the SCN shows that there is no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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