Page 126 - GSTL_18th June 2020_Vol 37_Part 3

340 GST LAW TIMES [ Vol. 37
ing that the activity of the appellant amounted to ‘management, maintenance or
repairs’ which was leviable to service tax as per the provisions of Finance Act,
1994. The allegations made in the show cause notice were confirmed vide the
impugned Order-in-Original against which appellant is in appeal before the Tri-
bunal.
3. In the appeal memorandum and submissions made during the
course of hearing by Shri A.K. Batra, Chartered Accountant and Ms. Vibha Na-
rang, Advocate, it has been submitted that the impugned activity of providing
parking facility in the Malls was not taxable as Mall owners did not receive any
payment or consideration and were not recording any transaction in their finan-
cial records. They are only concerned with the hassle free parking and are not
charging any amount for providing the parking space to appellant. There is,
therefore, no provision of services by the appellant to the mall owners and no
service provider & recipient relationship existed between them. Appellant is a
partnership firm and is operating the parking area of the malls as an independ-
ent business; there has been no arrangement or agreement to provide “Manage-
ment, Maintenance or Repair Services”; they are working on principal to princi-
pal basis; there was no intention for provision of services in the nature of man-
agement, maintenance or repair services and the only essence was to provide a
hassle free parking; no consideration flows from Mall owners to the appellant;
the amount received from various vehicle owners as a consideration for parking
cannot be taken for taxing the appellant for the alleged services rendered to Mall
owners and no consideration is paid or received from the mall owners; the in-
come earned from parking fees belongs to assessee entirely and nothing is remit-
ted to the mall owners from the collections made or otherwise; there is no privity
of contract between the person who is paying the parking charges and the Mall
owners; there should be a direct link between provision of services and consider-
ation received; consideration of Service may be provided by the third party who
is interested in the service to be provided to the participant i.e. consideration
should either flow from beneficiary or from a third person on behalf of the bene-
ficiary; they were conducting own business as they are operating the parking
area by employing own resources and labour and they are bearing all the related
expenses on their own account and booking the same as business expenses; they
are not managing the parking facilities for the mall owners but rendering park-
ing services to the visitors or customers of the mall. The “Management, Mainte-
nance or Repair Services” has been rendered to self by the appellant in order to
run the business of parking. The Learned Counsel for the appellant further ar-
gued that Revenue cannot guide any person as to how it should conduct its
business. That it was mall owner’s discretion that they did not want to charge
any consideration against providing parking space to the appellant. They relied
upon the case law in Hero Cycles (P) Ltd. v. CIT (Central), Ludhiana, 2015-TIOL-280
SC-IT and SA Builders Ltd. v. CIT (Appeals), Chandigarh & Anr., 2006-TIOL-179-SC-
IT. The Learned Counsel further claimed that operation activity is different from
management and that the appellant is operating the parking area and not manag-
ing the same for the mall owners. They are also in arrangement with the mall
owners for operating, managing and letting out of kiosks, space etc. for the pur-
pose of advertisements in the respective five malls i.e. (a) The Metropolitan, Gur-
gaon (b) The Plaza Gurgaon (c) MGF Megacity, Gurgaon (d) The Metropolitan,

GST LAW TIMES  18th June 2020  126