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TMI Blog2024 (8) TMI 850X X X X Extracts X X X X X X X X Extracts X X X X ..... comprising ground plus three storey and 'house consumer goods' shops. The appellant has leased out such shops under agreements for monthly rental, in respect of which the appellant duly pays service tax under the category of "renting of immovable property service". The common area of Mall is managed and maintained by the appellant and the cost incurred is to be paid by the lessees, in respect of which appellant duly paid service tax under the category of "management, maintenance and repair service". All the parking areas are exclusive to the lessor viz., the appellant. No rights have been granted to any of the lessees in respect of the car parking area. It is clearly stated in the deed that the individual car parking area will be available ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not a separate service but is in relation to "renting of immovable property" and liable to service tax. On such basis, a demand of Rs.66,27,239/- was sought to be recovered from the appellant for the period from 01.06.2007 to 31.03.2011 by invoking extended period of limitation. 4.1. The appellant contested the issue and submitted that they are not liable to pay service tax for car parking which was sought to be included by the Revenue under 'renting of immovable property service'. Therefore, it was argued that service tax is not payable, but the ld. adjudicating authority confirmed the demand vide the impugned order. 5. Aggrieved from the said order, the appellant is before us. 6. The Ld. Counsel appearing on behalf of the appellant s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o pay service tax for the parking area of car or not. 9.3. For better appreciation, the definition of "renting of immovable property" as per Section 65(90a) of the Finance Act, 1994 is required to be seen, which reads as under: - "In terms of Sec 65(90a), "renting of immovable property" includes renting, letting leasing, licensing or other similar arrangements of immovable property for use in the course or furtherance of business or commerce but does not include - (i) renting of immovable property by a religious body or to a religious body; or (ii) renting of immovable property to an educational body, imparting skill or knowledge or lessons on any subject or field, other than a commercial training or coaching centre. Explanation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the use of such vacant land; (c) land used for educational, sports, circus, entertainment and parking purposes, and (d) building used solely for residential purposes and buildings used for the purposes of accommodation, including hotels, hostels, boarding houses, holiday accommodation, tents, camping facilities," 9.4. On going through the said definition, we find that land used for parking purposes is not chargeable to service tax under the category of "renting of immovable property service". 10. The same view was taken by this Tribunal in the case of Mahesh Sunny Enterprises P. Ltd. (supra), wherein it was observed as under: - "15. The above provision, i.e. the Explanation makes it clear beyond any doubt, that Parliament had int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereby set aside. The appeals are allowed". 10.1. Further, in the case of Select Infrastructure Pvt. Ltd. (supra), this Tribunal had observed at paragraph 5 of the order that: "5. Regarding the parking income, we note that while parking fee collected from the owners or employees of the shop who are in business or commerce are rightly covered under renting of immovable property service, such fee collected from the individual casual visitors of the mall cannot be covered under such category. We note that the statutory tax entry for renting of immovable property service under heading 65(105) (zzzz) of the Finance. Act, 1994 stipulates the immovable property should be used in the course of furtherance of business or commerce. The parking fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g is provided from an immovable property (building) which is not vacant land, it is liable to tax during the period under dispute. From a reading of the provisions, it is seen that, for the purposes of sub-clause (zzzz) of Section 65 (105), "immovable property" does not include land used for parking purposes. Clause (c) which deals with the exclusion states: "(c) land used for educational, sports, circus, entertainment and parking purposes;" 14.2 While clauses (a) and (b) under Explanation 1 make a reference to 'vacant land', clause (c) refers only to 'land'. The purpose for the use of land is also mentioned as educational, sports, circus, entertainment and parking. Therefore, the word "parking" takes colour from the preceding words e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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