2018 (10) TMI 477 – CESTAT CHENNAI – TMI – Renting of immovable property service – appellant leased out lands to M/s. NLC Tamilnadu Power Ltd. for setting up for coal based Thermal Power Plant at Tuticorin – Held that:- The Tribunal in the case of New Okhla Industrial Development Authority [2014 (1) TMI 1203 – CESTAT NEW DELHI] has discussed the issue and held that renting of vacant land is not taxable prior to amendment with effect from 01.07.2010 – demand do not sustain – appeal allowed – decided in favor of appellant. – ST/40359/2015 – 42476/2018 – Dated:- 26-9-2018 – Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical) For the Appellant : Shri R. Sai Prasanth, Advocate For the Respondent : Shri K. Veerabhadra Reddy, ADC (AR) ORDER PER BENCH Brief facts are that on investigation it was revealed that the appellant leased out lands to M/s. NLC Tamilnadu Power Ltd. for setting up for coal based Thermal Power Plant at Tuticorin and collected lease
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2010, definition of renting of immovable property was amended to include vacant lands given on rent for construction of building on temporary structure at later stage to be used for furtherance of business or commerce. Accordingly, the appellant has been discharging service tax on the lease rentals collected towards vacant land with effect from 01.07.2010. This issue stands already settled in favour of the appellant by Hon ble Allahabad High Court in Commissioner of Service Tax, Noida Vs. Greater Noida Development Authority 2015 (40) STR 46 (All.) wherein it was held that in view of exclusion of vacant land from ambit of immovable property prior to 01.07.2010, it cannot be said to be merely clarificatory and retrospective from 01.06.2007. Further reliance is placed on decision of Hon ble Delhi Tribunal in New Okhla Industrial Development Authority Vs. CCE, Customs & S.T. Noida 2015 (39) STR 443 (Tri.-Del.) wherein he Hon ble Tribunal has also held that renting of vacant land is not
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son, 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.] Explanation 1. – For the purposes of this sub-clause, immovable property includes – (i) building and part of a building, and the land appurtenant thereto; (ii) land incidental to the use of such building or part of a building; (iii) the common or shared areas and facilities relating thereto; and (iv) in case of a building located in a complex or an industrial estate, all common areas and facilities relating thereto, within such complex or estate, but does not include – (a) vacant land solely used for agriculture, aquaculture, farming, forestry, animal husbandry, mining purposes; (b) vacant land, whether or not having facilities clearly incidental to 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 use
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t a lease of vacant land (for construction of a building or a temporary structure at a later stage to be used for furtherance of business or commerce) is a taxable service only since 1- 7-2010; according to Revenue clause (v) in Explanation 1 merely clarifies the clear and implicit intent of clause (zzzz). xxxx xxxxxx xxxxx xxxx 15. On the above analysis, renting of vacant land by way of lease or licence (irrespective of the duration or tenure), for construction of a building or a temporary structure for use at a later stage in furtherance of business or commerce is a taxable service only from 1-7-2010, and not so, earlier to this date. Further, the Hon ble High Court of Allahabad in the case of Greater Noida Development Authority (supra) had also held that there is no liability to pay service tax prior to 1.7.2010 for renting of vacant land. Following the decisions, we are of the considered opinion that the demand cannot sustain. The impugned order is set aside and the appeal is allow
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