TaxTMI 
TaxTMI 
2020 (10) TMI 577
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....on 65(105)(r) of the Finance Act, 1994. Since the entire service income earned by the appellant from 2007-08 to 2010-11 was on account of service provided by it to foreign based companies, the appellant did not pay any service tax on provision of such services treating the same as 'Export of service' in terms of Rule 3(1)(iii) of the Export of Service Rules, 2005. 2. The Departmental authority conducted audit of financial statements and record of the appellant for the period 2007-08 to 2010-11. The Department objected to non payment of service tax on the ground that the appellant is providing 'Investment Advisory service' in relation to 'real estate properties' in India. The Department contended that investment advisory service provided with regard to real estate properties in India should be taxable under the category of 'Real Estate Agent service" as defined under section 65 (105)(v) of the Finance Act, 1994. It has further been contended that as the properties in relation to which 'Real Estate Agent Service' was provided by the appellant are not situated outside India (which is the condition required to be fulfilled for a service to qualify as the 'Export of Service') and as ....
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....From the nature of services under the contract, it is unambiguously clear that the Noticee has been providing the advisory services to their overseas holding company relating to real estate situated in India so that they could go ahead with acquisition process and investment of the identified potential real estate projects in India. Thus, there is no iota of doubt that such services of the Noticee squarely fall within the four corners of the Real Estate Agent.s Services and not under the Management of Business Consultancy Services." 5. Feeling aggrieved by the above impugned Order-in-Original, the appellant has filed this Appeal. 6. The contention of the learned advocate is that the demand of service tax confirmed for the period 2011-2012 was on the basis of best judgement method as provided under section 72 of the Finance Act, 1994 and same is not based on the factual position but on certain assumptions and presumptions. The entire demand has been calculated in a vague and arbitrary manner and, therefore, the same is not legally sustainable . It has further been elaborated by the learned advocate that by adopting to best judgement method, taxable value of the services render....
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....ld be covered under this taxable service category. 11. Further, 'real estate agent' has been defined under Section 65(88) of the Finance Act, 1994, to mean: "a person who is engaged in rendering any service in relation to sale, purchase, leasing or renting of real estate and includes a real estate consultant". 12. Section 65(89) of the Finance Act, 1994 defines 'real estate consultant' to mean: "a person who renders in any manner, either directly or indirectly, advice consultancy or technical assistance, in relation to evaluation, conception, design, development, construction, implementation, supervision, maintenance, marketing, acquisition or management, or real estate." 13. Upon perusal of the above definition, it is absolutely clear that 'Real Estate Agent' service covers within its ambit such services which are provided / to be provided in respect of sale / purchase /renting of real estate. It also includes services like providing feasibility reports to real estate developers and promoters, conducting techno-economic studies and providing feasibility report on a project proposed to be undertaken by the developers or promoters. In other words, 'Real Es....
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....en by the appellant with reference to the work orders of the various clients. Nomenclature of their income or their initial registration with the Service Tax Department cannot be the sole basis for taxing the appellant under a particular category. The true nature of service should be examined from the activities undertaken and income earned by the appellant". 16. The learned Advocate has also mentioned that this Tribunal in their own case in Appeal Nos. ST/50117/2014 and ST/50292, 50554-50556/2014-ST(DB) by final decision dated 13.03.2018 had held that the services provided by the appellant is classifiable under the 'Management, Business Consultancy Services'. The learned advocate has also relied on two more decisions:- 1. M/s. CDP Real Estate Advisory India Pvt Ltd. vs CCE, Delhi [2018-TIOL-1531-CESTAT-DEL]; 2. M/s. Ivanhoe Cambridge Investment Advisory India P Ltd vs CST, Delhi [ 2018-TIOL-2202-CESTAT-DEL] 17. On the basis of above decisions, the learned advocate has submitted that the impugned Order-in-Original deserves to be set aside. 18. We have also heard learned Departmental Representative who has supported the findings as given in Order-in-Origin....
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....ents as advisors of the investment opportunities in Indian company, which is clearly covered within the definition of MBCS. We agree with the submissions of the ld. Counsel that by investing in a company in real estate sector, the investor does not acquire or purchase the real estate property itself. In this context, we find that the Tribunal in the case of AMP capital Advisors Indian Pvt. Ltd. Vs. CST, Mumbai -2015-TIOL-1001-CESTAT-MUM, observed that the appellant providing advisory services to AMP capital, Australia and the service recipient using said advice received for further advising for their customers in India, would qualify for export of service. The relevant paragraphs of such decision are reproduced below:- "6. I have carefully considered the submissions made by both the sides. The issue to be decided by me in this case is whether the services provided by the appellant, M/s. AMP India Capital Advisors (India) Pvt. Ltd. to M/s. AMP Capital (Australia) is 'export of service' or otherwise and consequently eligibility to refund. As per the facts, the appellant is providing management consultancy services such as providing reports of information on investment area, ....
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....y the buyer in India as assumed by the lower authorities. 3. On going through the impugned order, we find that there is absolutely no evidence for the conclusions reached by the lower authorities that investment and research services have been used in India only. The learned Commissioner has simply stated that on going through the agreement this is what he finds. He has not quoted paragraph of the agreement which is relevant and where exactly it emerges from the agreement that services are lo be used in India. Moreover, as per Circular, issued by the Board in 2009 and considered in the Interim Order (supra), if the beneficiary is located outside, refund is admissible. It is not the case of the Revenue that consideration has not been received in foreign currency. We also find that this Tribunal in the case of CST, Mumbai v. M/s. Greater Pacific Capital Pvt. Ltd. [2014-TIOL-1726-CESTAT-Mum] in similar circumstances came to the conclusion that refund is admissible. Accordingly, we consider that the appellant has made out a case for eligibility for refund. Therefore appeal is allowed with consequential relief to the appellant." (ii) Commissioner of Service Tax, Mumbai....