TMI Blog2024 (4) TMI 330X X X X Extracts X X X X X X X X Extracts X X X X ..... gement, maintenance or repair service. The demand of Rs. 1,28,72,584/- under this head needs to be set aside. Renting of immovable property service - HELD THAT:- It is found that renting of immovable property was chargeable to service tax under section 65 (105) (zzzz) during the relevant period except where such renting of property was for residential purposes. According to the appellant itself, it had rented its property to run a hostel and it had not rented it to somebody to stay. What is taxable under section 65 (105) (zzzz) is a service rendered by any person by renting of immovable property or any other service in relation to such renting for use in the course of or for furtherance of business or commerce. Clearly, renting of the property for running a hostel is a commercial activity, therefore, the amount received for such renting was clearly exigible to service tax under section 65 (105) (zzzz). The demand of Rs. 8,33,522/-, therefore, needs to be upheld. Supply of tangible goods service - HELD THAT:- The appellant does not dispute that it received the hiring charges nor does it indicate what goods it had supplied and on what terms and to whom. All that the appellant is sayi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 77 of the Finance Act. 2. The appellant holds service tax registration and was engaged in providing erection, commissioning or installation service, and management, maintenance or repair service to various clients including to the Delhi Jal Board DJB . Investigation was initiated against the appellant by the S I Branch of Division II of the Commissionerate. ST-2 Certificate, ST-3 returns, TR-6 challans, balance sheets and profit and loss account of the appellant for the period 2005-2006 to 2009-2010 were called for by the officers. On scrutiny of these documents, it was found that the appellant was providing construction services and other taxable services, such as, replacing of old and damaged water lines, repair of damaged sewage lines, etc. It was also found that the appellant had given on rent immovable property to be used as a hostel. Accordingly, a show cause notice SCN was issued to the appellant proposing to recover service tax under three heads as follows :- (a) Management, maintenance or repair service under section 65 (105) (zzg) read with section 65 (64) Rs. 1,28,72,584/- ; (b) renting of immovable property service under section 65 (105) (zzzz) Rs. 8,33,522/- ; (c) su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... category of supply of tangible goods service. It is not correct for Commissioner to have confirmed the demand without establishing that supply of tangible goods service was rendered. (g) Extended period of limitation was wrongly invoked in this case as the appellant had no intention to evade payment of tax. Some portion of the demand pertains to the period beyond 5 years and, therefore, cannot be sustained for that reason. The appeal may be allowed and the impugned order may be set aside. 5. Learned authorized representative for the Revenue vehemently supports the impugned order. He submits that he calls for no interference. 6. We have considered the submissions on both sides and perused the records. 7. We now proceed to decide the issues. It is not in dispute that the appellant had not paid service tax, and did not disclose the rendering of these services in its ST returns. Therefore, the department called for various records of the appellant and culled out the information and determined the tax liability as per the best judgment assessment under section 72 of the Finance Act, 1994. This section reads as follows :- 72. Best judgment assessment. If (a) any person fails to make the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... furtherance of business or commerce. Clearly, renting of the property for running a hostel is a commercial activity, therefore, the amount received for such renting was clearly exigible to service tax under section 65 (105) (zzzz). The demand of Rs. 8,33,522/-, therefore, needs to be upheld and we do so. 11. Balance sheets of the appellant and its income tax returns showed that the appellant had received hiring charges. It had not paid service tax on the amounts which were received for such hiring. Therefore, a demand of Rs. 2,39,249/- is made under the head supply of tangible goods service under section 65 (105) (zzzj). The appellant does not dispute that it received the hiring charges nor does it indicate what goods it had supplied and on what terms and to whom. All that the appellant is saying is that since the department is not able to establish that it had rendered supply on tangible goods service service tax cannot be fastened on it. We find this argument rather strange. It was the responsibility of the appellant to disclose full facts before the investigating officers, the adjudicating authority and before us regarding the nature of the goods which it had supplied, the terms ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
