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Corporate News *  Missing seized records must be considered while testing ITC claim; duplicate GST demands ordered corrected: Delhi High Court. *  GST appeal can’t be rejected without addressing taxpayer’s grounds: Allahabad High Court. *  Surplus IGST credit can offset CGST, SGST shortfall: GSTAT. *  GST refund can’t be denied when cancelled airfares are returned with tax: GSTAT. *  3 Hearing notices issued within 2 minutes: Gujarat High Court flags portal flaw, seeks report. *  GSTR-9, GSTR-9C filing for FY 2025-26 enabled; pending GSTR-1 and GSTR-3B must be filed first. *  Dupattas are exempt fabrics, can’t be taxed as fibres at 4%: Madras High Court. *  Full transitional credit allowed on capital goods received after GST rollout: GSTAT denies Rs. 6.99 lakh export duty credit. *  GST return mismatch alone can’t justify fraud proceedings: GSTAT orders fresh adjudication under section 73. *  Supplier found non-existent later can’t alone justify input tax credit denial: GSTAT. *  GST interest stops once tax reaches government account, can’t run until return filing: GSTAT. *  Cancelled flat booking- GST refund can’t be denied without excluding COVID period from limitation: GSTAT. *  India notifies rules of origin for India–New Zealand FTA. *  Incomplete E-bike kits classifiable as complete vehicles, but not eligible for CKD duty concession: CESTAT. *  Same GST rate on main input and output can’t by itself bar inverted duty refund: GSTAT. *  Unjust enrichment doesn’t apply to customs refunds from assessments finalised before July 13, 2006: Gujarat High Court. *  CENVAT credit can’t be denied solely because plant And machinery are embedded in earth: Karnataka High Court. *  DFIA exports ineligible for RoDTEP benefits; customs directs repayment with applicable interest. *  Second E-Way bill alone doesn’t prove another supply: GSTAT. *  Bail denied in Rs. 1.19 crore fake GST refund case over risk of accused absconding again: Punjab and Haryana High Court. *  GST registration can be restored after revocation deadline if outstanding dues are paid: Gauhati High Court. *  Multiple GST proceedings over same suppliers: Calcutta High Court directs dept. to share findings for adjudication. *  E-Governance portal services not OIDAR, fixed deposit interest not taxable: CESTAT. *  Rs. 500 Stamp duty required on authority letters for CAs, CMA and GST practitioners in Pune GST division.  *  Rs. 1.10 crore GST refund must be paid in cash after business closure: Allahabad High Court. *  Godown rent attracts 18% GST even when used exclusively for exempt agricultural warehousing: AAR. *  GST portal launches "Multi-State Registration" facility: one master TRN for registration applications across multiple States/UTs. *  RoDTEP scheme extended till 31st December, 2026.  *  Mere disagreement with order can’t override Rs. 20 lakh appeal limit: GSTAT. *  Customs interest can’t be backdated before confiscation liability is determined; nearly 8 year period excluded: Delhi High Court.
Subject News *  GST summons: anticipatory bail maintainable without arrest order, but relief denied in evasion case: Allahabad High Court. *  GST Appeal can’t be decided without hearing taxpayer’s objections to fresh evidence: Allahabad High Court. *  GST ITC can’t be reversed merely because supplier grants discount without reducing tax liability: GSTAT. *  Mere quoting of GST provision is not a valid charge: GSTAT quashes ITC denial. *  Personal hearing mandatory before adverse GST order, even without taxpayer’s request: Rajasthan High Court. *  Parallel bail pleas without full disclosure amount to abuse of process Rs. 43.08 crore GST case sent for fresh hearing: Supreme Court. *  GST refund based on unchallenged advance ruling can’t be recovered using later circular: GSTAT. *  Payment of GST alone doesn’t end interest and penalty liability when tax and interest remain unpaid beyond 30 days of notice: GSTAT. *  GST demand over builders’ 80% procurement rule requires reasoned adjudication: GSTAT. *  Eligible ITC doesn’t automatically entitle taxpayers to compensation cess refund on domestic sales: GSTAT. *  GST confiscation order passed before reply deadline invalid: GSTAT. *  GST interest can’t be retained after tax refund on delayed export receipts: Punjab & Haryana High Court. *  GST appeal can’t be dismissed over pre-deposit shortfall without opportunity To respond: Bombay High Court. *  DGGI SCN can’t be challenged before reply and adjudication:Chhattisgarh High Court. *  GST input tax credit can’t be denied solely due to supplier’s retrospective registration cancellation: GSTAT. *  GST notice must explain fraud allegations; merely repeating section 74 Is not enough:  Himachal Pradesh High Court. *  Audit detection alone can’t justify GST fraud penalty; specific suppression must be proved: GSTAT. *  GST order uploaded only under ‘Additional Notices’ tab without separate intimation set aside: Calcutta High Court. *  Service Tax appeal can’t be rejected for missing pre-deposit proof when payment is already recorded: CESTAT. *  SGST dept. can’t hear appeal against CGST order: Calcutta High Court. *  Mere dispatch of tax order can’t prove service or make appeal time-barred: CESTAT. *  Dealer incentives can’t be taxed merely on ledger entries: CESTAT. *  DGFT orders quashed for failure to supply DRI letter relied upon in SCN: Bombay High Court. *  GST penalty u/s 122(1A) can’t apply to Pre-2021 transactions; unregistered beneficiaries also covered: Delhi High Court. *  Expired E-way bill caused by wrong PIN code can’t justify GST penalty without intent to evade tax: GSTAT. *  Used railway rails can’t be taxed as track material without proof they are fit for reuse: CESTAT. *  Earlier DGGI notice doesn’t bar separate GST demand on different issue: Delhi High Court. *  ITC dispute involves no question of law: GSTAT directs appeal to Vice-President. *  Earlier DGGI notice doesn’t bar separate GST demand On different issue: Delhi High Court. *  No E-way bill required for interstate goods movement in november 2017: GSTAT quashes detention and penalty.  

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PJ/Case Law/2011-12/1143

Activity of road work - whether classifiable under 'Management, maintenance or repair service'

Case: Karnataka Rural Infrastructure Dev. Ltd v/s CST, Bangalore
 
Citation:2011 (22) STR 22 (Tri-Bang)
 
Issue: - Whether activity of road works fall under ‘management, maintenance or repair’ of immovable property or construction service – Board Circular clarifying the issue not before the Adjudicating Authority – aspect of construction and supply of material not considered – matter remanded for fresh adjudication.
 
Brief Facts: -Appellant is Govt of Karnataka undertaking and is engaged in the construction of building, roads, and other civil works for Govt of Karnataka. They are registered under service tax for providing Consulting Engineer Service. Appellant were also engaged in the activity of maintenance of roads, construction of drainage, Upgradation of sidewalks, asphalting of roads etc as per agreement with various Govt agencies.
 
Revenue officers sought verification of records and after verification, they noticed that for the period 15.10.2005 to 30.11.2006 and 01.12.2006 to 31.03.2008, appellant had executed various contracts to complete the work of Upgradation of side-walks, asphalting of roads and strengthening of footpaths and re-surfacing of the various roads for various State Government agencies including municipalities and municipal corporations.
 
Revenue alleged that appellant was required to pay service on these services under the category of ‘management, maintenance or repair’ of immovable property service and issued show cause notices. The Demand of service tax with interest was confirmed and penalty was also imposed under Section 76 & 77 but no penalty was imposed under Section 78.   
 
Appellant is in appeal against the impugned orders.
 
Appellant’s Contention:  - Appellant contended that their activity did not fall under the category of ‘management, maintenance or repair’ of immovable property as roads were not immovable property but they were public property and fell within the jurisprudence of eminent domain/sovereign domain and therefore excludable from the category of immovable property. It was submitted that the activity was done of public property and could not be held liable to service tax as the said activity has been specifically excluded from statutory definitions.
 
Alternatively, it was submitted that the activity done by them would more appropriately fall under commercial or industrial services and under the same, there is specific exclusion for the activity undertaken in or in relation to roads. It was submitted that the definition of ‘work contract’ would also exclude the activity done in respect of roads etc. It was submitted that the activity undertaken by them could not be taxed under some other category when it is specifically mentioned in specific heading. As per the principles of classification, specific head would exclude the general heading.
 
It was also submitted that the Adjudicating Authority had held that there is no need for invocation of extended period but had confirmed the entire demand for entire period. It was further submitted that the contracts entered by the appellants with various authorities were of composite nature and hence the entire activity could not he categorized under head ‘management, maintenance or repair’ of immovable property.
 
Respondent’s contention:- Revenue contended that public road although fell under sovereign domain but was an immovable property also. Reliance was placed on Board Circular F. No. B-1/6/2005-TRU, dt. 27.7.2005 and it was submitted that this activity is covered under the category of ‘management, maintenance or repair’ of immovable property.
 
Reasoning of Judgment: - The Tribunal held that from the record it appears that there is categorical mention of “construction of drains, providing drain covers, providing cement concrete and cobble stone for footpath, providing cement concrete kerbs, asphalting of roads and various other activities”. It was noticed that there could be a construction activity and also there could be supply of materials. The Adjudicating Authorities have not considered the factual position regarding construction activity and supplies aspect. It was found by the Tribunal that the Board in Circular No. 110/4/2009-ST dated 23.02.2009 has given a clarification regarding the levy of service tax on repair/renovation/widening of roads. It has been specifically provided therein that which activity will fall under ‘management, maintenance or repair’ of immovable property and which will fall under the category of construction activity.
 
Thus, the Tribunal held that the issue requires re-examination as the Board Circular dated 23.02.2009 was not available to the Adjudicating Authority at the time of adjudication. Impugned orders set aside and matter remitted back to the Adjudicating Authority to re-consider the issue afresh.
 
Decision:- Matter remanded for fresh adjudication.
 
Comment:- This is old issue of litigation and is still going on. It has not settled even after issue of Board circular. Now the Board has given exemption to repairing of Roads.
 

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