Dismissed

Commissioner of Service Tax v. Prestige Garden Constructions Pvt. Ltd.

Karnataka HC28 Oct 2022CEA/4/2021

Case brief

AI extract

What is this about?

In this appeal against a CESTAT order regarding Service Tax and Cenvat credit, the High Court noted the similarity with a pending appeal (CEA 38/2019) which it had already dismissed. Dismissing the current appeal, the court answered the question of law in favor of the assessee against the Revenue.

What did the court decide?

Appeal dismissed; question of law answered in favor of the assessee.

Commissioner of Service Tax Vs Prestige Garden… — Writ and Judicial Review | Karnataka HC (2022)

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C.E.A No.4/2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28^TH DAY OF OCTOBER, 2022 PRESENT

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THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR

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AND

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THE HON’BLE MR. JUSTICE UMESH M. ADIGA

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C.E.A No.4 OF 2021

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BETWEEN :

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COMMISSIONER OF SERVICE TAX BANGALORE SERVICE TAX-1 1^ST TO 5^TH FLOOR, TTMC BUILDING ABOVE BMTC BUS STAND DOMLUR, BANGALORE-560 001 KARNATAKA

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PRESENT OFFICE PRINCIPAL COMMISSIONER OF CENTRAL TAX BANGALORE NORTH NO.59, HMT BHAWAN GROUND FLOOR, BELLARY ROAD BANGALORE-560 032 KARNATAKA ... APPELLANT

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(BY SMT. K.R. VANITHA., ADVOCATE)

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AND :

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PRESTIGE GARDEN CONSTRUCTIONS PVT. LTD. THE FALCON HOUSE, NO.1 MAIN GUARD ROAD BANGALORE-560 001 KARNATAKA ... RESPONDENT (BY SHRI. L.S. KARTHIKEYAN, ADVOCATE) ….

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C.E.A No.4/2021

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THIS CEA IS FILED UNDER SEC.35G OF THE CENTRAL EXCISE ACT, 1944, ARISING OUT OF ORDER DATED 19.02.2020 PASSED IN FINAL ORDER NO.20211/2020 AND CONSEQUENTIALLY, CONFIRM THE ORDER-IN-ORIGINAL NO.26/2014 DATED 30.05.2014 PASSED BY COMMISSIONER OF SERVICE TAX, BENGALURU PRAYING TO SET ASIDE THE CESTAT FINAL ORDER NO.20211/2020 DATED 19.02.2020 VIDE ANNEXURE-A AND DECIDE THE QUESTION OF LAW FRAMED THEREIN BY ALLOWING THE APPEAL IN THE INTEREST OF JUSTICE AND EQUITY AND ETC.

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THIS CEA, HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 26.08.2022, COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY, P.S.DINESH KUMAR J, PRONOUNCED THE FOLLOWING:-

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JUDGMENT

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This appeal by the Revenue challenging the final order No.20211 dated February 19, 2020 in Appeal No.ST/22675/2014 passed by CESTAT¹ , South Zonal Bench, Bengaluru has been admitted to consider the following question of law:

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" A. Whether the CESTAT was right in not taking into cognizance the facts brought out in the OIO No.26/2014 both dated: 30.05.2014 and allowing the credit on input services for the period prior to 01.04.2011.

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B. Whether the CESTAT was right in holding that the assessee is eligible for taking the Cenvat credit on input services used for construction of immovable property, for the period prior to 01.04.2011 and the utilization of the

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1 Customs, Excise & Service Tax Appellate Tribunal, Bangalore

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C.E.A No.4/2021

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said credit for payment of Service Tax under the category of 'Renting of Immovable Property Service'?

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C. Whether the CESTAT was right in setting aside the Orders and allowing their appeals. "

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Heard Smt. K.R. Vanitha, learned

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Advocate for the Revenue and Shri. N. Anand, learned Advocate for the assessee.

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Brief facts of the case are, respondent,

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engaged in the business of renting immovable properties, is registered under the Service tax. During the audit, it was observed that assessee had availed input service credit on garden maintenance, Sodexo Food coupon etc., which had no nexus with their output service namely renting of immovable property. Accordingly, a notice dated October 23, 2013 was issued to show cause as to why the irregularly availed CENVAT credit should not be reversed. After considering assessee's reply, the

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proposal in the show cause notice was confirmed

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vide Order-in-Original dated May 30, 2014 passed by the Commissioner of Service tax holding that CENVAT credit was wrongly utilized. In addition, interest and penalty were also imposed. On appeal by the assessee, the CESTAT has set-aside the order passed by the Commissioner. Hence, this appeal.

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It is relevant to note that Revenue has averred in para 9 of the Memorandum of appeal as follows:

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" Further, in a similar case in respect of M/s Golf Links, Bangalore, the department has filed an appeal against CESTAT Final Order No.21081/2018 dated 02.08.2018 and the same is pending before the Hon'ble High Court of Karnataka (CEA 38/2019). " (Emphasis Supplied)

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We have simultaneously considered the appeal CEA 38/2019 and dismissed the same for reasons recorded therein. According to the Revenue, this appeal is similar to CEA 38/2019 and the same is not disputed.

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C.E.A No.4/2021

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6. In view of the above, this appeal must

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fail. Hence, the following:

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Order

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(a) Appeal is dismissed .

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(b) The question of law is answered in favour

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of the assessee and against the Revenue.

No costs.

Sd/JUDGE

Sd/JUDGE

SPS

Commissioner of Service Tax v. Prestige Garden Constructions Pvt. Ltd.

Case brief

What is this about?

What did the court decide?

Commissioner of Service Tax v. Prestige Garden Constructions Pvt. Ltd.

Case brief

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What did the court decide?

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