Page 39 - GSTL_26th March 2020_Vol 34_Part 4

2020 ] COURT-ROOM HIGHLIGHTS J135
1994 or under Construction of Complex service under Section 65(105)(zzzh) as
these services would cover only pure service activities. However, the construc-
tion of new building or civil structure or new residential complex under an indi-
visible composite contract is taxable under Works Contract service under Section
65(105)(zzzza) of Finance Act, 1994.
The Tribunal had further held that mere failure of the assessee to inti-
mate the Department about their intention to opt for payment of Service Tax un-
der composition scheme under Works Contract service cannot be a ground to
deny them the benefit of payment of Service Tax under the category of Works
Contract service under Section 65(105)(zzzza) introduced w.e.f. 1-6-2007 in re-
spect of construction services provided under a composite contract.
REPRESENTED BY : Mr. K. Radhakrishna, Senior Advocate, Mr. B.
Krishna. Prasad, AOR, Ms. Binu Tamta and Ms.
Sunita Rani Singh, Advocates, for the Petitioner.

(1) Tangible goods services — Sub-leasing of Aircraft
whether taxable under SOTG services?
(2) Penalty waiver on the ground of bona fide belief and
payment of tax with interest, sustainability thereof?

The Supreme Court Bench comprising Hon’ble Mr. Justice Dr. D.Y.
Chandrachud and Hon’ble Ms. Justice Indira Banerjee on 19-7-2019 after condon-
ing the delay issued notice in the Civil Appeal Diary No. 12222 of 2019 filed by
Commissioner of Service Tax, Chennai against the CESTAT Final Order Nos.
42278-42285/2018, dated 10-7-2018 (Blue Dart Aviation Ltd. v. Commissioner).
The Appellate Tribunal in its impugned order had held that it was factu-
ally established that main lessee of Aircraft from Boeing company had authority
to sub-lease same to appellant on same conditions on which original lease had
been taken. Further also established that operation of aircraft was being done
with the personnel of the appellant themselves. Requisite maintenance was also
being done by appellant themselves. Accordingly, right of possession and control
of the aircraft was bestowed on the appellant and not retained with the lessor. In
view of this said supply was not covered under SOTG services. Tribunal relied
its decision in Power Mac Industries for this decision.
The Tribunal also held that since appellant had paid tax demand with in-
terest on issues of non-inclusion of TDS in value of services provided and avail-
ment of ineligible credit on trucks and haulers, no penalty was imposable as ap-
pellant had bona fide belief of non-taxability of TDS and availability of credit on
said vehicles.
REPRESENTED BY : Mr. Tushar Mehta, SG, Mr. B. Krishna Prasad,
AOR, Mr. Zoheb Hossain, Mr. Rajat Nair and
Mr. T.C. Sharma, Advocates, for the Appellant.

GST LAW TIMES  26th March 2020  135