TaxTMI 
TaxTMI 
2021 (10) TMI 1229
X X X X Extracts X X X X
X X X X Extracts X X X X
.... on or after 01/07/2010 for which the services had been provided prior to 01/07/2010 involving Service tax amounting to Rs. 55,31,116/-. along with interest and imposition of penalty as proposed in the Show Cause Notice. 2. Briefly stated, the facts of the case are that the Appellant is engaged in the business of promoting plush housing and infrastructure projects in West Bengal. One such residential complex being developed by the Appellant was named "Eden City Maheshtala" at New Budge Budge Trunk Road, Maheshtala, 24 Parganas (South) for which the Appellant was registered with the Service Tax authorities. Based on the Service Tax audit of the Appellant for the period 2008-09 to 2012- 13, it was served with the Show Cause Notice dated 23/10/2013 wherein the issues as stated supra were raised. Hence, the present appeal before the Tribunal. 3. Shri Ankit Kanodia, learned Advocate, appeared on behalf of the appellant assessee. He submitted that as regards the first issue of demand of Service Tax on car parking charges collected by the Appellant from its buyers, it was not a Construction Service as the Appellant was only transferring right to use of the car parking to the buyers and....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lear that when there was no taxable event in existence when the services were performed, there cannot be any Service Tax demand made only if consideration has been received post the service being made taxable by the government. He referred to Rule 6(1) of the Service Tax Rules w.e.f. 01/04/2005 wherein it was stated as- "Provided further that notwithstanding the time of receipt of payment towards the value of services, no service tax shall be payable for the part or whole of the value of services, which is attributable to services provided during the period when such services were not taxable." It is his submission that since it is not disputed that the services were performed prior to 30/06/2010 and the same has also been confirmed by the architect's certificate in this regard, then the question of any Service Tax liability on the same cannot arise and hence the demand is bad in law. He also relied on the following decisions : (a) Amit Metaliks Ltd Versus Commissioner of CGST, Bolpur [2020 (41) G.S.T.L. 325 (Tri. - Kolkata)] (b) Kolla Developers & Builders Vs. CCCE & ST, Hyderabad-II Appeal No. ST/1915/2010, Final Order No. A/31197/2018 dated 27/08/2018 (c) Commissioner OF C....
X X X X Extracts X X X X
X X X X Extracts X X X X
....herwise no positive evidence adduced by the Revenue so as to justifiably invoke the longer period of limitation. The Service Tax law, during the relevant period, was still at the nascent stage and was not clear. The Board's Circular referred by the learned Advocate is to the effect that all peripheral activities provided by the builders would not be taxable under the category of "Residential Complex Construction Services". Inasmuch as admittedly the parking area is a separate area from flats sold by the appellant, there can be bona fide belief on the part of the assessee that such parking charges are not includible in the value of the services falling under "Residential Complex Construction Services". There is also no positive evidence indicating any mala fide on part of the appellant. Accordingly, we set aside the order on limitation and allow the appeal on the said ground" Thus, in the instant case of the Appellant, since the entire demand has been raised by invoking extended period of limitation, the same is set aside. 6.2 Next, as regards the demand of Service Tax on 'Club Membership Services', we find that since there was no club in existence during the period of dispute, t....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... levy itself came into existence. In this regard Rule 6(1) of the Service tax Rules, 1994 clearly provides that the said amounts cannot be taxed if the service was not taxable when the same was provided. We find that the Tribunal in the case of Amit Metaliks Ltd. (Supra) held that as regards taxable event for levy of Service Tax as- "17.....................We find that these two activities have been rendered prior to introduction of declared service under the statute, and therefore, the same cannot be made applicable to the event that as concluded before the introduction of the new levy. This issue has been decided in case of CCE & C v. Schott Glass India Private Limited [2009 (14) S.T.R. 146 (Guj.) and wherein paragraph 4 has held as under; "4. The Service Tax, which has been imposed by way of Finance Act, 1994 (the Act), levies Service Tax as provided in Section 64(3) of the Act to all taxable services provided on or after commencement of Chapter 97 (sic) (Chapter V) of the Act. Thus, the taxable event is providing all taxable services which has been defined by Section 65(105) of the Act. Similarly, the Rules, which have been incorporated as Chapter 98 (sic) define "person l....