Page 129 - GSTL_18th June 2020_Vol 37_Part 3

2020 ] MGF EVENT MANAGEMENT v. COMMISSIONER OF CENTRAL EXCISE, DELHI 343
provider and charged, in the course of providing or agreeing
to provide a taxable service, except in such circumstances, and
subject to such conditions, as may be prescribed;
(iii) any amount retained by the lottery distributor or selling agent
from gross sale amount of lottery ticket in addition to the fee
or commission, if any, or, as the case may be, the discount re-
ceived, that is to say, the difference in the face value of lottery
ticket and the price at which the distributor or selling agent
gets such ticket.
7. Section 67(1)(i) clearly stipulates that where the consideration is not
wholly or partly consisting of money, it would be such amount in money as,
with the addition of service tax charged, is equivalent to the consideration. Fur-
ther, in Section 67(1)(i) consideration has been taken as the gross amount charged
by the service provider. Thus, there is no doubt that the right to collect parking
fees given by the mall owners is nothing but a consideration provided to the ap-
pellant by the mall owners and the measure of such consideration is the gross
income generated through the parking fees.
8. We further find that the Learned Counsel for the appellant has
sought to repudiate the liability on the impugned activity by contending that
they are merely operating the parking area which is different from the service of
‘management, maintenance and repairs’. We are not inclined to accept this dis-
tinction because as far as the business activity is concerned qua the appellant, it is
operation of the parking area but when this activity is examined qua the mall
owners they are providing the service of ‘management, maintenance or repairs’
to the mall owners.
9. We also find that the case laws cited by the appellant are not relevant
in the light of these findings. However, we accept the additional plea of the
Learned Counsel of the appellant that such gross income will include service tax
also and the taxable income has to be computed after abating the amount of ser-
vice tax from the gross income in terms of Section 67(2) of the Finance Act. There-
fore, the income shown in the balance sheet as parking fees will be considered as
cum-tax value for determination of service tax. We also accept the argument of
the Learned Counsel of the appellant that they will be eligible to avail the Cenvat
credit of the service tax paid on input services, which have been provided to the
appellant by third party agency or any other service providers in providing the
said service of ‘management, maintenance and repairs’ of the parking area.
10. However, we cannot accept the plea of the appellant that no ex-
tended period was invocable as there was no wilful suppression of facts on their
part as they were submitting regular service tax returns to the department. We
find that there was a clear misdeclaration and wilful suppression inasmuch as
the appellant has suppressed the income of parking fees in the relevant returns
with an ulterior motive to evade the service tax. They have wilfully designed
their mode of operation to evade the service tax. As such we find that the ex-
tended period is invocable in the case.
11. In view of entire above discussion we uphold the order-in-original
so far as legality of levy of service tax on the activity under ‘management,
maintenance or repair service’ is concerned. However, the appellant will be enti-
tled to avail Cenvat credit of service tax paid by the service providers and cum-
GST LAW TIMES  18th June 2020  129