TaxTMI 
TaxTMI 
2015 (4) TMI 464
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....l for the petitioner has sought to challenge the issue of demand-cum-show cause notice under Annexure-13, inter alia, essentially on the ground that the conditions precedent for exercise of jurisdiction to invoke the extended period of limitation are wholly absent and the Commissioner has not properly applied his mind to the question as to whether the condition for invoking the extended period of limitation existed and/or acted mechanically and consequently, he submits that the impugned showcause notice amounts to wrongfully invocation of jurisdiction and hence, ought to be quashed. In this respect, he placed reliance on the judgment of the Hon'ble Calcutta High Court in the case of Infinity Infotech Parks Ltd. v. Union of India, decided on 30.04.2014. In a factual matrix, learned counsel for the petitioner submits that the petitioner-B.D.A. is a statutory body created by the State for the development of infrastructure within the capital area at Bhubaneswar and he submits that on the basis of direction issued by the State Government, the petitioner offered an advertisement for setting of commercial-cum-residential complex, pursuant to which M/s.Unitech Ltd. being the highest bidder....
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....ords, the nature of transaction between BDA and M/s.Unitech Ltd. is of the nature of lease or rent and not of sale. 4.4 Renting of immovable property service has come in to Service Tax net w.e.f 01.06.2007. The definition appended vide Section 65(90a) of the Finance Act, 1994 as follows: [(90a "renting of immovable property" includes renting, letting, leasing, licensing or other similar arrangements of immovable property for use in the course or furtherance of business or commerce but does not include- (i) renting of immovable property by a religious body or to a religious body; or (ii) renting of immovable property to an educational body, imparting skill or knowledge or lessons on any subject or field, other than a commercial training or coaching centre. Explanation [1] - For the purposes of this clause, "for use in the course or furtherance of business or commerce" includes use of immovable property as factories, office buildings, warehouses, theatres, exhibition halls and multiple-use buildings;] [Explanation 2. - For the removal of doubts, it is hereby declared that for the purposes of this clause "renting of immovable property" includes allowing or permitting the use of ....
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....Service" for the purpose of Service Tax and the one time consideration of Rs. 52.75 Crore received from M/s.Unitech Ltd. appears taxable. 4.10 It appears that this is not a case of sale of land by BDA to M/s. Unitech Ltd. but a case of lease of land. Here, control over the leased land remains with the lessee during the lease period of 85 years only. The leased land can be taken back after expiry of the lease period, if it cannot be renewed further. Again, a consideration is required for getting the lease renewed, whereas in case of sale, there is no question of renewal or collection of any extra consideration. Under Para-7(iii) of the Lease agreement dated 30.09.2010, it has been clearly laid down that if the lease granted is not renewed, the company shall hand over to BDA, free of cost, the peaceful possession of the demised land and transfer the buildings and other structure erected upon the demised land. In case of sale, there is no condition of post-sale renewal or the seller taking back the land at a later stage. Moreover, no evidence in support of sale could be produced either By Shri Mallick or by BDA (refer to answer to question no.14 in statement dated 25.03.2013 of Shri ....
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....he judgment of the Hon'ble Supreme Court in the case of Collector of Central Excise, Hyderabad v. M/s. Chemphar Drugs and Liniments, Hyderabad, (1989) 2 SCC 127 and in particular, Para-9 thereof is quoted as hereunder: "9. ------- In order to make the demand for duty sustainable beyond a period of six months and up to a period of 5 years in view of the proviso to sub-section (1) of Section 11-A of the Act, it has to be established that the duty of excise has not been levied or paid or short-levied or short-paid, or erroneously refunded by reasons of either fraud or collusion or willful misstatement or suppression of facts or contravention of any provision of the Act or Rules made thereunder, with intent to evade payment of duty. Something positive other than mere inaction or failure on the part of the manufacturer or producer or conscious or deliberate withholding of information when the manufacturer knew otherwise, is required before it is saddled with any liability, before (sic beyond) the period of six months. Whether in a particular set of facts and circumstances there was any fraud or collusion or willful misstatement or suppression or contravention of any provision of any Ac....