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Corporate News *  Service tax penalty can’t survive when assessee acted on dept.’s own view of non-taxability: Delhi High Court. *  GST section 74 extended limitation questionable when form 26AS mismatch was already known: Karnataka High Court grants interim relief. *  CGST demand prima facie impermissible after state GST settlement under section 128A: Bombay High Court. *  Supreme Court asks GSTAT to sympathetically consider delay as taxpayers pursued remedy before wrong forum. *  Supreme Court stays Tripura High Court ruling protecting genuine buyers from ITC denial over supplier’s GST default. *  Diary entries alone can’t prove clandestine removal of goods: CESTAT quashes excise penalty on steel trader. *  Customs could investigate preferential tariff claims even before sec. 28DA: Delhi High Court. *  Customs dept. relied on fake AI generated case laws: supreme court quashes Rs. 425.28 crore penalty. *  No GST exemption in affiliation and annual registration charges for admission or conduct Of examinations: GSTAT. *  Mere invoices, cheque payments insufficient to establish genuine movement of goods: GSTAT restores Rs. 43.44 lakh ITC demand. *  Consolidated GST show cause notice covering multiple financial years is not without jurisdiction: Delhi High Court. *  Construction of independent houses on separate plots not taxable as ‘Residential Complex’ without common facilities: CESTAT. *  GST penalty exceeding statutory maximum unsustainable; Allahabad High Court quashes ? 50,000/- penalty after taxpayer filed return and paid late fee. *  GST order against standard chartered bank passed without hearing set aside by Bombay High Court. *  Retracted statements can’t be relied upon without cross-examination: CESTAT quashes gold confiscation. *  Burden to prove misclassification lies on customs department: CESTAT. *  CESTAT quashes Rs. 98 lakh excise demand on clearance of used refractory brick scrap. *  Service tax demand on irrigation works quashed: Karnataka High Court rules sale of goods component not taxable as service. *  GSTAT restores tax and penalty for transporting iron scrap without E-way bill citing intent to evade tax. *  Madras High Court stays GST recovery from directors without opportunity to show cause under section 89. *  Madras high court stays GST recovery notice against directors; finds prima facie case on applicability of section 79(1)(c). *  Procedural lapses can’t justify harsh punishment without serious customs breach: CESTAT quashes customs broker licence revocation. *  Service tax payable on land leasing and sports complex charges: CESTAT. *  Settled customs dispute can’t be reopened through Article 226 challenge to interest liability: Delhi High Court. *  Mere facilitation of customs clearance can’t establish knowledge of smuggling: Madras High Court. *  GST registration cancellation stayed: Allahabad High Court questions 99% ITC utilisation cap under rule 86B. *  Composition scheme lapses automatically on crossing Rs. 1.5 crore turnover: GSTAT. *  Gujarat High Court quashes GST cancellation orders after officer relied on non-existent AI-generated case laws. *  Importers liable for customs duty benefits availed through manipulated scrips: Delhi High Court. *  Procedural E-way bill lapse alone can’t justify penalty where genuine transaction and absence of tax evasion are established: GSTAT.
Subject News *  Documentary evidence dominates probe, further custody unwarranted: mumbai court grants bail in Rs. 22.44 crore customs duty evasion case. *  Business premises can’t remain sealed for non-participation in GST search: Allahabad High Court. *  GST pre-deposit must be refunded proportionately when taxpayer partly succeeds in appeal: Bombay High Court. *  Supreme Court grants 30 days to file GST appeal; keeps pre-deposit issue open due to deposit in parallel CGST proceedings. *  GST demand can’t exceed amount proposed in SCN: Allahabad High Court quashes Rs. 20.47 Crore order. *  Hundreds-of-crores GST demand and heavy 10% pre-deposit no ground to bypass statutory appeal: Punjab & Haryana High Court. *  Delhi High Court refuses to entertain challenge to gold confiscation due to statutory appeal remedy and unexplained delay. *  Procedural error in customs broker licence inquiry can be rectified through remand: Delhi High Court. *  GSTR-2A mismatch alone can’t justify ITC denial without invoice-wise verification; personal hearing mandatory: GSTAT. *  GST order passed without uploading personal hearing notices violates sec. 75(4): Allahabad High Court. *  TAX EVASION - Sec. 74 GST SCN quashed for not spelling out fraud, wilful misstatement or suppression: Allahabad High Court. *  STPI’s SOFTEX certification and NoC charges taxable as business support services: CESTAT. *  Suspicion can’t replace proof: CESTAT quashes penalty in alleged gold-smuggling operation. *   Limitation runs from communication of order: Madras High Court upholds rejection of delayed GST Appeals. *  Rajasthan High Court quashes GST demand over unsigned show cause notice. *  ITC recovery upheld where supplier failed to deposit GST: Rajasthan High Court. *  Customs commissioner’s empowered to make port trust liable for duty on pilfered goods: Supreme Court. *  Rectification proceedings can’t be used to challenge an uncontested GST assessment through a writ petition: Andhra Pradesh HC. *  GST proceedings against deceased proprietor unsustainable without notice to legal heir: GSTAT. *  Mere availment of ineligible self-assessed ITC doesn’t amount to suppression without evidence of fraud or wilful misstatement: GSTAT. *  Disposal of mining overburden by entity authorised by mining lease holder constitutes taxable service: CESTAT. *  Toll plaza data not mandatory for ITC refund: GSTAT. *  Disputed GST fraud allegations require investigation: Punjab and Haryana High Court makes interim bail absolute in alleged fraud and GST fraud case. *  Non-manufacturer contractor liable to deposit excess excise duty collected from buyer: CESTAT. *  GST order can’t reject taxpayer’s reply as “not satisfactory” without reasons: Madhya Pradesh High Court. *  Uncorroborated statements can’t establish alleged diversion of duty-free goods: CESTAT. *  Erection services were not liable to service tax prior to 10th september 2004: CESTAT. *  Sec. 74 GST notice must spell out statutory ingredients for invoking extended tax demand proceedings: Allahabad High Court. *  No jurisdictional bar under section 6(2)(b) in parallel CGST SGST proceedings: Delhi High Court refuses to bypass GST appeal remedy. *  Madras High Court remits GST demand for fresh adjudication after taxpayer claims it was unaware of SCN following business closure.  

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PJ/CASE LAW/2014-15/2538

Whether premium collected by Housing Board leviable to service tax?

Case:-MAHARASHTRA INDUSTRIAL DEVELOPMENT CORPORATION Vs COMMISSIONER OF SERVICE TAX, MUMBAI
 
Citation:-2015-TIOL-139-CESTAT-MUM
 
Brief Facts:-Vide stay Order No. S/942/14/CSTB/C-I dated 25/08/2014, the appellant, M/s. Maharashtra Industrial Development Corporation, was directed to make a pre-deposit of Rs.185 crore, which is the service tax demand for the normal period of limitation within a period of 12 weeks and report compliance by 25/11/2014.

The appellant has filed a miscellaneous application for modification of the stay order.

Appellant contentions:- The learned Consultant appearing for the appellant submits that subsequent to the passing of the stay order by this Tribunal, there has been further developments in the matter. The issue of exigibility to service tax, of the premium collected in a transaction where the land is leased for the purpose of subsequent commercial construction has been considered by the Principal Bench of this Tribunal at New Delhi, in the case of Greater Noida Industrial Development Authority.Vide order dated 28/08/2014,the Principal Bench has held that salami premium collected is not exigible to service tax under the category of "renting of immovable property".
The learned Counsel also submits that an identical matter also came up before the Hon'ble High Court in the case of City and Industrial Development Corporation of Maharashtra Ltd., (CIDCO Ltd.) in Central Excise Appeal (L) No. 317 of 2014 wherein also this Tribunal had ordered for pre-deposit of the service tax demand for the normal period of limitation for consideration of the appeal. The Hon'ble High Court of Bombay has directed this Tribunal to hear the appeal without insisting on a pre-deposit by setting aside the order by this Tribunal. The learned Consultant submits that the ratio of the above decisions may be followed in the present case also and therefore, the stay order dated 25/08/2014 be modified suitably waiving the requirement of pre-deposit.

Respondent Contentions:- The learned Deputy Commissioner (AR) appearing for the Revenue has no objection.

Reasoning of Judgment:- Considering the final order passed by Principal Bench at Delhi in the case of Greater Noida Industrial Development Authority and also the order of the Hon'ble High Court of Bombay in the case of City & Industrial Development Corporation of Maharashtra Ltd., the stay order dated 25/08/2014 was modified by waiving the requirement of pre-deposit of Rs.185 crore and the registry was directed to list the appeal for final hearing without insisting on any pre-deposit. Revenue is restrained from recovery of dues adjudged against the appellant during the pendency of the appeal.
 
Thus, the application for modification is allowed as discussed above.
 
Decision:- Modification application allowed.
 
 
Comment:- The analogy of the decision is that the salami premium collected by MIDC is not leviable to service tax under the category of ‘Renting of immovable property’  in view of the decision given in the case of Greater Noida Industrial Development Authority and City & Industrial Development Corporation of Maharashtra Ltd.

Prepared By:Meet Jain
 

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