R.C.Jain and Associates (Member) (134 Points)
26 June 2013Dear all,
Kindly provide your opinion on whether service tax would be levied on the service of maintenance of plants, in a corporate by an agency which takes the responsibility of providing manure, replacing dead plants, etc.
Thanking in anticipation,
Samiksha Jain
Sonam Bidasaria
(CA)
(770 Points)
Replied 26 June 2013
As per the new definition
"Service Tax is an activity for carried out by a person for another for consideration and includes a declared service, but shall not include....................(irrelevant part).
Further, Negative list of service under Sec 66D also contains certain service which are outside of the ambit of levy of serviec tax.
Mega Exemption Notification 25/2012 lists out certain exemptions FROM LEVY OF SERVICE TAX.
To impose service tax, it is necessary that the particluar activity must fulfill the three criterias laid down in the definition:
1. ACTIVITY - Maintenance of plant is an activity
2. BY A PERSON FOR ANOTHER PERSON - Service provider and receiver are two different persons.
3. CONSIDERATION - Service receiver is giving some consideration the agency for carrying out such maintenance.
Hence, this service is liable to service tax.
Further, its is not covered in the Ngative service list and Mega Exemption Notification.
Arun Kumar Singh
(GST Advocate)
(15220 Points)
Replied 27 June 2013
It will fall under the mega exemption notification under services provided by way of maintenance of a polution control, except located as a part of a factory.
R.C.Jain and Associates
(Member)
(134 Points)
Replied 28 June 2013
Thank you all for the replies. But should it not get covered under horticulture and thereby be exempt under agriculture service of maintenance of green belt.
Dear Arun Sir, the service in our case is provided in closed premises of corporate office.
Thanks and regards,
Samiksha Jain
Amit Mukim
(Assistant Manager)
(21 Points)
Replied 01 April 2014
I totally agree with Sonam Bidasaria CA. Service of service of maintenance of plants, in a corporate by an agency which takes the responsibility of providing manure, replacing dead plants, etc. is a taxable service. It is not covered by the Negative List, Mega Exemption Notification & other Exemption Notifications.
Further, Horticulture activity is covered under the definition of agriculture as per the Education Guide issued by CBEC.
CA Amit Kumar Mukim
APRA & Assiciates
Nikunj Thakkar
(Articled Clerk)
(22 Points)
Replied 06 April 2014
From when horticulture services is covered under service tax? If a prop.firm is registered under Installation,Commissioning and plantation services code whose business is providing horticulture services to various person then the regn. is valid for horti.services? If no, then what is the remedy?
Hemanta Mishra
(Accounts Officer (F&A))
(23 Points)
Replied 12 August 2015
Abhijeet
(student)
(22 Points)
Replied 25 August 2016
i have a query?
i have a nursery business. if labour and material supply is combined in a bill. there is no bifurcation about labour and material amount then how i calculate the sevice tax?
Sunil Kumar
(Indirect Taxation )
(1246 Points)
Replied 29 August 2016
For the orginal query- I get confused, to me it is a taxable service. We cant cover this in to horticulture. Please conclude the original query.
Ashwani Gupta
(2 Points)
Replied 31 July 2017
HI, ALL
SUB. GST RELATED
Please Guide me on Gst percentage and Hsn code on live plants services and maintainece in corporate sites e.g. Manure, replaced, cutting, etc.
REPLY FAST PLEASE
THANKYOU
MASVAD INDIA
ASHWANI KASHYAP
birpal singh
(4 Points)
Replied 01 October 2021
13 AHMEDABADIII v. MURLIDHAR HORTICULTURE PVT LTD ST - The respondent-assessee is engaged in maintenance of gardens, which includes work relating to lawn, hedge & shrubs - Such services are exclusively provided to M/s Reliance Industries Ltd at different sites - Duty demands were raised under Management, Maintenance and Repair Services - On adjudication, the demands for the period prior to 01.07.2012 were dropped on grounds that the activity was not classifiable under MMR service - However, the demands for post 01.07.2012 were confirmed on grounds that the service was not covered under the Negative list - On appeal, the Commr.(A) noted that the activity involved maintenance and development of garden, trees, pots and cutting and sampling of plants, trees, grass, water, fertilizer - Hence it was held that such activity was classifiable under Agricultural activities - Hence the Revenue's appeal.
Held: Considering the definition of Management, Maintenance and Repair Services nowhere leads to the inference that the assessee's activities fall under this definition - The property involved should be movable or immovable - Section 3 of the Transfer of Property Act 1882 defines immovable property as not including timber, growing crops or grass - Admittedly, the assessee's activities do not fall under this category and are not classifiable under this heading: CESTAT (Para 5,6)
Held: Agriculture - The same has been defined u/s 65B(3) of the Finance Act 1994 to include the cultivation of plants and rearing of all life forms of animal, except the rearing of horses, for food, fiber, fuel, raw material or other similar products –
Moreover, the Negative List under Section 66D(d) of the Finance Act 1994 exempts services related to production of any agriculture produce including cultivation, harvesting & Threshing plant protection - Hence the cultivation of plants and their protection is included in scope of Agriculture - Moreover, the term 'Horticulture' means to provide for plant conservation, landscape restoration, landscape restoration and landscape & garden designing, maintenance - The term 'agriculture' has a very wide compass and covers 'horticulture' as well, which in turn covers gardening in its scope - In this regard, the Apex Court in Kasturi (Dead) by Lrs Vs. Gaon Sabha (1989) 4 SCC 45 held that in the absence of a statutory definition, the meaning in the common parlance would have to be adopted - Hence the activity undertaken by the assessee falls under the definition of horticulture, which is part of agricultural activity only & is not liable for any service tax - Moreover, as the issue is one of interpretation, the extended period of limitation cannot be invoked to raise duty demand - Besides, the Revenue adduced no evidence to show that there was any deliberate intent to evade payment of duty - Hence the demands are hit by limitation as well: CESTAT (Para 1,5,6,8,9)
Assessee's appeal allowed: AHMEDABAD CESTAT
birpal singh
(4 Points)
Replied 01 October 2021
13 AHMEDABADIII v. MURLIDHAR HORTICULTURE PVT LTD ST - The respondent-assessee is engaged in maintenance of gardens, which includes work relating to lawn, hedge & shrubs - Such services are exclusively provided to M/s Reliance Industries Ltd at different sites - Duty demands were raised under Management, Maintenance and Repair Services - On adjudication, the demands for the period prior to 01.07.2012 were dropped on grounds that the activity was not classifiable under MMR service - However, the demands for post 01.07.2012 were confirmed on grounds that the service was not covered under the Negative list - On appeal, the Commr.(A) noted that the activity involved maintenance and development of garden, trees, pots and cutting and sampling of plants, trees, grass, water, fertilizer - Hence it was held that such activity was classifiable under Agricultural activities - Hence the Revenue's appeal.
Held: Considering the definition of Management, Maintenance and Repair Services nowhere leads to the inference that the assessee's activities fall under this definition - The property involved should be movable or immovable - Section 3 of the Transfer of Property Act 1882 defines immovable property as not including timber, growing crops or grass - Admittedly, the assessee's activities do not fall under this category and are not classifiable under this heading: CESTAT (Para 5,6)
Held: Agriculture - The same has been defined u/s 65B(3) of the Finance Act 1994 to include the cultivation of plants and rearing of all life forms of animal, except the rearing of horses, for food, fiber, fuel, raw material or other similar products –
Moreover, the Negative List under Section 66D(d) of the Finance Act 1994 exempts services related to production of any agriculture produce including cultivation, harvesting & Threshing plant protection - Hence the cultivation of plants and their protection is included in scope of Agriculture - Moreover, the term 'Horticulture' means to provide for plant conservation, landscape restoration, landscape restoration and landscape & garden designing, maintenance - The term 'agriculture' has a very wide compass and covers 'horticulture' as well, which in turn covers gardening in its scope - In this regard, the Apex Court in Kasturi (Dead) by Lrs Vs. Gaon Sabha (1989) 4 SCC 45 held that in the absence of a statutory definition, the meaning in the common parlance would have to be adopted - Hence the activity undertaken by the assessee falls under the definition of horticulture, which is part of agricultural activity only & is not liable for any service tax - Moreover, as the issue is one of interpretation, the extended period of limitation cannot be invoked to raise duty demand - Besides, the Revenue adduced no evidence to show that there was any deliberate intent to evade payment of duty - Hence the demands are hit by limitation as well: CESTAT (Para 1,5,6,8,9)
Assessee's appeal allowed: AHMEDABAD CESTAT
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