TMI Blog2022 (8) TMI 645X X X X Extracts X X X X X X X X Extracts X X X X ..... and should have condoned the delay, by not condoning the delay the learned Commissioner (Appeals) has deprived the appellant from their right of appeal, therefore, the appellant should have been allowed condonation of the delay, accordingly, the order of rejection of the appeal by the Commissioner (Appeals) on time bar is not sustainable. Whether the service provided by the appellant to GSPHCL is service provided to a governmental authority? - HELD THAT:- The GSPHCL is a 100% owned by Government of Gujarat therefore, it clearly falls under the category of service provided to government authority - The corporation/board constituted under the act of State Government should be considered as a governmental authority and accordingly, exemption provided to the government or governmental authority is applicable in respect of service provided by a service provider to such board/corporation. In the present case also the service provider has provided service to GSPHCL which is a corporation of State Government incorporated under the State Government Act passed by the State Assembly accordingly, the GSPHCL is a governmental authority and exemption under Section 102 is clearly applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal impugned, the appellant filed the present appeal. 02. Shri Amit Laddha, learned counsel appearing on behalf of the appellant submits that the appellant has given sufficient reason for delay in filing the appeal before the Commissioner (Appeals) and the delay was only 24 days which was well within the power of Commissioner (Appeals) to condone the delay. As regard the merit, he submits that the service provided to GSPHCL falls under the category of governmental authority as the said GSPHCL Corporation is 100% owned by the government by way of equity therefore, the same is a governmental authority hence, the exemption is available. In support of his submission, he placed reliance on the following judgments:- Senior Regional Manager, Tamil Nadu Civil Supplies Corporation, Thanjavur Vs. Principal Chief Commissioner of GSt C.Ex., Chennai- 2021 (51) GSTL 360 (Mad.) Commissioner of Central Excise S.T., Kanpur Vs. Executive Engineer, UP State Construction Infrastructure Development Corpn. Ltd.- 2019 (24) GSTL 607 (Tri.All.) Bharat Bhushan Gupta Company Vs. State of Haryana- 2016 (44) STR 195 (P H) Krishi Constructions Pvt. Ltd. Vs. Commissioner of C.T., Hyd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the department of Revenue and Finance Ministry, Government of India. The withdrawal notice was issued on 01.03.2015 but it came into effect on 01.04.2015. Since there was still some ambiguity as regards the treatment of the subject matter for the period from 01.04.2015 to 01.03.2016, to deal with the same, Section 102 of the Finance Act, 2016 was brought in. Section 102(1) of the Finance Act, 2016 reads as follows: 102. (1) Notwithstanding anything contained in section 66B, no service tax shall be levied or collected during the period commencing from the 1st day of April, 2015 and ending with the 29th day of February, 2016 (both days inclusive), in respect of taxable services provided to the Government, a local authority or a Governmental authority, by way of construction, erection, commissioning, installation, completion, fitting out, repair, maintenance, renovation or alteration of (a) a civil structure or any other original works meant predominantly for use other than for commerce, industry or any other business or profession; (b) a structure meant predominantly for use as (i) an educational establishment; (ii) a clinical establishment; or ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quently, connected miscellaneous petition is closed. Commissioner of Central Excise S.T., Kanpur Vs. Executive Engineer, UP State Construction Infrastructure Development Corpn. Ltd.- 2019 (24) GSTL 607 (Tri.All.) 2. After hearing both sides duly represented by Shri Rajeev Ranjan, learned Addl. Commr.(A.R.) along with Shri Gyanendra Kumar Tripathi, learned Dy.Commr.(A.R.) for the Revenue and Shri Amit Kumar Prasad, learned Advocate for the respondent, we find that the respondents were engaged in providing works contract services to various departments of Govt. of Uttar Pradesh in terms of the contract entered between the two. The services provided by the respondent to the Govt. departments were exempt in terms of the Entry No.12 of Notification No.25/2012-ST dated 20.06.2012. However, subsequently vide Notification No.06/2015-ST dated 01.03.2015, effective from 01.04.2015 such mega exemption was omitted and the services provided to the govt. authorities became taxable. Accordingly the respondents started paying Service Tax. Subsequently the said exemption was again restored vide Notification No.09/2016-ST dated 01.03.2016, by inserting entry 12A in the mega No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the observations of the original adjudicating authority that the assessee had not filed any documents/invoices to show that the Service Tax paid by them related to the services specified in entry 12A of the mega exemption Notification are not proper inasmuch as there were all the documents to show that the services provided by them were covered by the said entry. As regards unjust enrichment angle he observed as under:- 3.4 Further, it is observed that for executing these work orders, the appellants did not raise any bill/invoice on the concerned department of the Government of Uttar Pradesh and on the basis of their estimates provided to the Government of Uttar Pradesh for such works, they had received the funds from the Government of Uttar Pradesh. Since prior to 01.04.2015, Service Tax on such work orders, was exempt under Sl.No.(a), (c) (f) of the entry 12 of the Mega Exemption, the funds received by them during 2015-16 did not include the Service Tax element. Since such work orders had become taxable during 01.04.2015 to 29.02.2016, they paid the Service Tax out of these funds allotted by the Government of Uttar Pradesh which did not include the Service Tax element. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the payment of whole or any part of the service tax leviable thereon, under circumstances of exceptional nature to be stated in such order. 13. In exercise of the powers conferred under the aforesaid provision, various notifications have been issued providing for exemption from payment of service tax. Relevant provisions of the applicable notifications are extracted below: Notification: 25/2012-S.T. Dated 20-Jun-2012 Exemptions from Service tax- Mega Notifications- Notification No. 12/2012-S.T. Superseded In exercise of the powers conferred by sub-section (1) of Section 93 of the Finance Act, 1994 (32 of 1994) (hereinafter referred to as the said Act) and in supersession of notification number 12/2012-Service Tax, dated the 17th March, 2012, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i) vide number G.S.R. 210(E), dated the 17th March, 2012, the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts the following taxable services from the whole of the service tax leviable thereon under Section 66B of the said Act, namely: xx xx xx 12. Services p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 1994), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby makes the following further amendments in the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 25/2012- Service Tax, dated the 20th June, 2012, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i) vide G.S.R. 467(E), dated the 20th June, 2012, namely: 1. In the said notification,- xx xx xx (ii) in entry 12, items (a), (c) and (f) shall be omitted. xx xx xx 3. Save as otherwise provided in this notification, this notification shall come into force on the Ist of April, 2015. The Finance Act, 2016 xx xx xx 102. Special provision for exemption in certain cases relating to construction of Government buildings.- (1) Notwithstanding anything contained in section 66B, no service tax shall be levied or collected during the period commencing from the Ist day of April, 2015 and ending with the 29th day of February, 2016 (both days inclusive), in respect of taxable services provided to the Government, a local authority or a Governmental authority, by way of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, as was enacted by the State Legislature. It is a body corporate which consists of a Chairman, a Chief Administrator and such other members, as the State Government may, from time to time, appoint by a notification. The Chief Administrator shall be a person from amongst the officers of the rank of Head of the Department or Joint Secretary of the State Government. It is termed to be a local authority for the purposes of Land Acquisition Act, 1894. Section 20 of the Act provides that subject to control of the State Government the Board may incur expenditure on framing and execution of such housing schemes as may be considered necessary from time to time or as may be entrusted to it by the State Government. Every year, the Board is to prepare a budget in advance for the next year and place it before the State Government for its approval. After sanction is granted by the State Government, the same is published in the official gazette. The Board is authorised to borrow money for implementation of the projects, as approved with prior approval of the State Government. Section 72 of the Act provides that the State Government shall exercise superintendence and control over the Board and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nmental authority having been set up under a State Act, i.e., Haryana Housing Board Act, 1971. It is wholly controlled by the State Government. BPL houses constructed by the petitioners are meant for residential purpose and not for commerce, industry or any other business or profession. 20. Similar issue came up for consideration before a Division Bench of Patna High Court in Shapoorji Paloonji and Company Pvt. Ltd.'s (supra), where the contact was for construction of administrative block in Indian Institute of Technology set up under the Institutes of Technology Act, 1961. Indian Institute of Technology was held to be a governmental authority and the contract for construction was opined to be falling in the exemption clause. The notice issued for levy of service tax was quashed. 21. In view of our aforesaid discussion, it can safely be opined that for the kind of contract entered into between the petitioners and the Board, no service tax is leviable, hence, the action of the Board in deducting part of the service tax, though payable in the hands of the Board, if tax is leviable, from the bills of the petitioners is declared to be illegal. Issue No. (ii) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt from opining on the legal issue raised by the petitioners in the writ petitions, as the petitioners are aggrieved of the act of the Board in deducting the tax from their bills. 25. In view of our abovesaid discussion, the questions, as framed above, are answered as under: (i) On the contract for construction of BPL houses, as awarded by the Board to the petitioners, no service tax is leviable w.e.f. 1.7.2012; and (ii) the Board is not entitled to pass on the burden of service tax payable on its part, if the tax is leviable, upon the contractors. 26. The writ petitions stand disposed of. Krishi Constructions Pvt. Ltd. Vs. Commissioner of C.T., Hyderabad- 2020 (43) GSTL 236 (Tri.-Hyd.) 12 . Having considered the rival contentions on this issue, we find that admittedly all the companies/Corporations have been established by the Government of Andhra Pradesh under the various Acts and/or Government order‟, as aforementioned and thus we hold that the appellant has provided service to Governmental authority. Evidently all the service recipients have been set up by the State Government, and are directly under the control of the various Ministri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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