2018 (9) TMI 259

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....rvice Tax Bangalore vide Order No. 24/06 dated 07.07.2006. On an appeal filed by the appellants, the Tribunal has remanded back the case to the Commissioner with a specific direction to analyze the matter within the ambit of definition of 'Real Estate Services' vis-a-vis 'construction of residential and complex services' vide Final Order No. 136/2007 in de novo proceedings. Commissioner has confirmed the demands once again vide OIO No. 71/2007 dated 10.07.2007. Hence, this appeal. 2. The learned counsel for the appellants has submitted that the onus to establish the fact that appellant has rendered real estate agent service, if any, was on the Revenue. In the instant case, the Revenue has simply stated that the services falls under category of 'real estate agent services' without adducing even an iota of evidence to support their contention. Real Estate Agent and Real Estate Consultants Services were introduced from the year 1998 and in terms of Trade notice No. 05/98 dated 14.10.1997, the scope was clarified. It was clarified that only realty services are covered under the said entry and construction activity carried out by developers does not attract Service Tax under the said e....

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....schedule property in to residential apartment buildings. The entry of 'construction of complex' and 'commercial or industrial construction service was introduced by Finance Act. 2005 w.e.f. 16.06.2005. Accordingly, if at the activity of appellants is to be construed as service it is possible only w.e.f. 16.06.2005. They relied upon the following case laws: (i) Indian National Ship Owners Association Vs. UOI 2009 (14) STR 289 (Bom.). (ii) Standard Chartered Bank case 2015 (40) STR 104 (Tri. LB)- Para 38. (iii) Chennai Telephone Vs. CCE 2004 (169) ELT 222 (Tri. Chennai). (iv) CCE Vs. MRF Ltd. 2005 (179) ELT 472 (Tri. Del.). 2.3 He further submitted that in view of the clarification contained in CBEC Circular No. 108/02/2009-ST, appellant would not liable to pay Service Tax under the head 'Construction of Complex Services' as they are not rendering any service to customers rather they are selling apartments on which there cannot be any levy of Service Tax. The 'Agreement to Sell' in prospective to buyers is only a contract for sale of immovable property and they itself does not create any interest or change on such property and the title and possession of the said immovable p....

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....Housing & Construction Ltd. CST, New Delhi 2018 (8) GSTL 58 (Tri. Del.). (ii) CST, New Delhi Vs. M/s. Today Homes and Infrastructure 2018 (2) TMI 1413 (Tri. Del.). 2.6 Coming to the amounts forfeited, he submitted that these are deposits made by purchasers and appellants collected these amounts under the 'Agreement to sale' or 'Construction' and these amounts have no nexus to any taxable services under the 'Real Estate Agent Services'. 2.7 Coming to management of construction projects, the learned counsel stated that the appellants has received certain amounts from customers like M/s. Mckino & M/s. Axa Business towards 'project management fees' and that it was erroneous to construe the same as 'real estate agent services'. In order to get covered under Section 65(88) of Finance Act, 1994 read with Section 65(89), there must be advise, consultancy or technical assistance in relation to management of real estate, which is very much lacking in the instant case. Even assuming that the management of projects of clients is liable to Service Tax under the heading 'commercial or industrial construction services' it is submitted that such services cannot be alleged to be covered under a....

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....ken by the appellants, the learned counsel has not contested the levy of Service Tax in respect of consultancy in real estate services. In respect of other services, we find that the issues raised therein are squarely covered by the ratio of various judgments cited supra. On going through the agreement between the appellants as a real estate developers and prospective buyers, we find that the contract is on a principal to principal basis Page 7 of contract provides that: The contract in case of breach of the terms and conditions of the Construction Agreement by the Purchaser, resulting in its termination, this Agreement shall also be deemed to have been terminated for default automatically without separate notice, in which even the Sellers/Builder shall be entitled for the liquidated damages of 15% of the sale consideration. Similarly Para 9 provides that: The purchaser shall not assign/transfer his/her/their interest under this Agreement without the prior written consent of the Sellers/Builder. It is explicitly made clear that Seller/Builder are not obligated to give their consent for any assignment by the Purchaser as this contract is exclusive in nature. It is also agreed th....