Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
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.  

Comments

Print   |    |  Comment

PJ/CASE LAW/2014-15/2458

Whether Charitable Institution liable to pay service tax on renting of immovable property?

Case:-M/s SOCIETY OF ST JOSEPH'S COLLEGEVs COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX, TIRUCHIRAPALLI

Citation:-2014-TIOL-2230-CESTAT-MAD

Brief Facts:- The applicant is running various Educational Institutions like St. Joseph's College, St. Joseph's Higher Secondary School, St. Joseph's School of Management. Apart from that, they are also  having commercial complexes, which are given on rent to various commercial concerns. There is a demand of service tax of Rs.77,55,977/- along with interest and penalty for the period 01.06.2007 to 31.12.2011 under the category of “Renting of Immovable Property Services”. There is further demand of Rs.3,75,477/- along with interest and penalty for the period 01.04.2007 to 31.12.2011 under the category of “Sale of Space or Time for Advertisement”.
 
Appellant contentions:- The learned Counsel on behalf of the applicant submits that in view of the definition of “Renting of Immovable Property” under Section 65(90a) of the Finance Act, 1994, renting of immovable property by a religious body as per their Bye Laws and the Adjudicating authority erroneously proceeded on the basis of Income-tax Law, which cannot be considered in view of the Board's Circular No.96/7/2007-ST, dated 23.08.2007. He further submits that the benefit under Income-tax Act was availed for the period upto 27.01.2009. It is submitted that the applicant is a minority Institution. He submits that the demand is partly barred by limitation. The demand for normal period is about Rs.22.67 lakhs. He submits that on an identical issue the Hon'ble Calcutta High Court in the case of Infinity Infotech Parks Ltd. Vs Union of India reported in2013 (31) S.T.R. 653 (Cal.) held that prima faciedemand of tax for extended period of limitation would not apply. He also relied upon the decision of the Kerala High Court in the case of K.M. Building Tenants Association Vs Kuthuparamba Municipality reported in 2013 (30) S.T.R.237 (Ker.). He submits that the balance amount of demand of tax is about Rs.3,00,000/- relating to ‘deemed sale' and no service tax is leviable.
 
Respondent Contentions:- On the other hand, the learned Authorised Representative on behalf of the Revenue reiterates the findings of the Adjudicating authority. He submits that the Tribunal on an identical issue had consistently directed pre-deposit of the entire amount of tax, following the Interim Order of the Hon'ble Supreme Court in the case of P.K. Hospitality Services P. Ltd. Vs Union of India reported in 2012 (26) S.T.R.J. 142 (S.C.) . He further submits that the said Interim Order was not placed before the Hon'ble Kerala High Court and the Hon'ble Calcutta High Court. He further submits that the main issue in this case is that the applicant had given on rent the commercial complexes to the various commercial concerns and, therefore, such activities cannot be taken as an exclusion part of the definition. The applicant was not registered as a religious body under the Societies Registration Act. Regarding the normal period, he submits that it would be about Rs.30,95,469/- as per ST-3 returns.
 
Reasoning of Judgment:-  After hearing both sides and on perusal of the records, we find that the applicant had given on rent various commercial complexes to various commercial concerns. It is noticed that the applicant declared themselves a Charitable Trust under Income-tax Act. The CBEC's Circular, dated 23.08.2007 clarified that the assessee is eligible for exemption under Income-tax Act on the ground of being a Charitable Institution and is of no consequence or has any relevance for service tax purpose. In the present case, the facts remain that the demand of service tax is on the commercial complexes which was given on rent to various commercial concerns. It is also noted that by Interim Order, the Hon'ble Supreme Court in the case of P.K. Hospitality Services P. Ltd(supra) directed pre-deposit. For the purpose of proper appreciation, the relevant portion of the said Interim Order is reproduced below:-
 
“Leave granted.
 
The appeal will be heard in SLP Paper Books. Additional documents, if any, may be filed by the parties. Having heard the learned counsel for the appellants on the question of stay with regard to the arrears of service tax due as on 30th September, 2011, we direct that on each of the appellant's clearing all the arrears as on the said date in three equated instalments, on or before 1st March, 2012, 1st May, 2012 and 1st July, 2012, no coercive steps shall be taken against the appellants for recovery of the said arrears. However, in the event of default on the part of the appellants in deposit of any one of the instalments by the due date, it will be open to the respondents to recovery the entire amount in arrears forthwith. We clarify that there is no stay of imposition of service tax under sub-clause (zzzz) of clause 105 of Section 65 read with Section 66 of the Finance Act, 1994 (as amended), insofar as the future liability towards service tax with effect from 1st October, 2011 is concerned. Tag with Civil Appeal No.83900 of 2011.”
 
The Tribunal consistently directed pre-deposit of the entire amount of tax following the decision of the P.K. Hospitality Services P. Ltd.(supra). The submission of the learned Counsel that the applicant is a religious body, would be considered at the time hearing of the appeal at length. Considering the overall facts and circumstances of the case and dispute relates to leviability of tax, we direct the applicant to make a pre-deposit of Rs.35,00,000/- (Rupees Thirty Five Lakhs only) within a period of eight weeks. Upon deposit of the said amount, pre-deposit of balance adjudged dues shall remain waived and stay recovery thereof till disposal of the appeal. To report compliance on 5th November, 2014.
 
Decision:-Pre deposit ordered.

Comment:- The essence of the case is that the assessee is eligible for exemption under Income-tax Act on the ground of being a Charitable Institution is of no relevance for service tax purpose. Furthermore, following the ratio of the decision given in P.K. Hospitality P. Ltd. case, the pre-deposit of Rs. 30 Lakhs was ordered.
 
PREPARED BY:MEET JAIN

Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com