Customs, Excise and Services Tax Appellate Tribunal (CESTAT): The Coram of Dilip Gupta, J. (President) and C.L. Mahar (Technical Member) allowed an appeal against an order passed by the Principal Commissioner of Service Tax, Delhi that confirmed the demand of service tax under “renting of immovable property” service with penalty and interest.

The Appellant, an owner of a cinema hall called ‘Golcha Cinema’ and engaged in the business of exhibiting films in this theatre. The Appellant had entered into agreements with films Distributors under which the theatrical exhibition rights for exhibition of the films were transferred to the Appellant, either for a specified number of shows and period or in perpetuity. It is in exercise of such rights obtained from the Distributors that the Appellant exhibited movies in its theatre. The Department, however, believed that the Appellant was providing various elements of interconnected services to the Distributors, such as renting/ letting/ leasing of theatre for exhibition of films; manpower to manage the theatre operations, provision of the projector and other related equipment to screen the films; arranging of power supply and providing arrangements to collect the box office collections. According to the Department, the essential character of the bundle of services provided by the Appellant was in the nature of “renting of immovable property” service which would be taxable under Section 65(105) (zzzz) of the Finance Act 1994 and under Section 66E(a) of the Finance Act read with Section 66F(3)(b) of the Finance Act.

The counsel for the appellant, B.L. Narasimhan submitted that for an activity to fall under ‘renting of immovable property’ services, the nature of the activity should be that of renting or letting or leasing or licensing or other similar arrangements of immovable property, for use in the course or furtherance of business or commerce. In the instant case, the immovable property i.e. the theatre is used and occupied by the Appellant in its own right to screen the film and at no point of time, the theatre is used by the Distributor and the agreements between the Appellant and the Distributors was on a revenue-sharing basis and hence, no service tax was leviable.

The Tribunal considered the judgment given by the counsel of the appellant in the case of Moti Talkies v. CST, 2020(6) TMI 87- CESTAT wherein it was held that the demand of service tax under ‘renting of immovable property’ service was not justified for the reason that the Appellant had not provided any service to the Distributor, nor the Distributor had made any payment to the Appellant as a consideration for the alleged service.

The Tribunal thus observed that the finding of the Principal Commissioner that ‘renting of immovable property’ service had been rendered by the Appellant to the film distributors was not sustainable and consequently demand of service tax on these income heads was not sustainable. The Tribunal allowed the appeal setting aside the impugned order.[Golcha Properties (P) Ltd. v. CST,  2020 SCC OnLine CESTAT 269, decided on 02-11-2020]

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