TaxTMI 
TaxTMI 
2021 (1) TMI 1213
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....09, it was reflected in the column as 'exempted services'. Though they have provided services and received payments for construction of flats during these periods under the taxable category of construction of residential complex service, they had not paid the service tax correctly. It was also noticed that they had not included the land cost in the taxable value of the flats for calculation of service tax. They had also availed abatement of 75% when the eligible abatement is only 67% on the gross amount. The summary of quantification of tax as shown in para 14 of the impugned order is as under:- S. No. Category of Service Period Service Tax Payable Service Tax already paid 1. Construction of residential complex service 1.4.2008 to 31.3.2010 6341502 1569511 2. Construction of residential complex service 2011 - 12 20576307 5144076 3. Construction of residential complex service 2010 - 11 to June 2012 8903265 6925778 4. Service tax payable on land value -- 16899320 --- 5. GTA service 1.4.2008 to 30.6.2012 23259 23259 Total 52743653 13662624 2.2 The department issued....
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....ent from the buyer and the flats were constructed from own capital fund. • The abatement values under Notification 1/2006-ST to 75%. • The question of excluding value of the land from taxable value for claiming abatement of 75% of value does not arise. • The statement dated 10.12.2012 does not give the correct position about the abatement of 75% because of the value of the flat or construction service. • This denial of abatement of 75% of the value is not correct. • The non-payment of tax was based on the circular. 2.3 After due process of law, the original authority confirmed the service tax along with interest and imposed penalties. Against such order the appellants are not before the Tribunal. 3. On behalf of the appellant, ld. Counsel Shri M.N. Bharathi reiterated the submissions made in the reply to the Show Cause Notice. It is submitted by him that the appellant has accepted the liability of service tax under GTA service and also paid up this entire liability. The issue under GTA service is not contested in the present appeal. Further, that the demand is made under construction of residential complex servi....
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....tion of the land would be executed by the power of attorney in the name of the prospective buyer on receipt of approximately 25% of the cost of the flat. Afer that the balance amount will be received in instalments before sale of building / flat to the buyer. The sale value of the undivided portion of the land and cost of construction was received separately as per the agreement. For the period January 2009 to March 2010, they had not paid service ax on the gross amount received by availing the benefit of CBEC Circular No. 108/2/2009 ST dated 29.1.2009. After April 2010, they were paying applicable service tax. From the period January 2009 to March 2010, they had received total of Rs. 23,22,57,112/-. The department was of the view that they are not eligible to take shelter of the said circular and have not discharged service tax correctly. Show Cause Notice dated 22.4.2014 was issued for the above period demanding short-paid service tax along with interest and also for imposing penalties. After due process of law, the original authority confirmed the demand, interest and also imposed penalties. Aggrieved by such order, the appellants are now before the Tribunal. 5. The ld. Couns....
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.... as a separate taxable service, statutory mechanism to exclude the value of transfer of property in goods has been prescribed. 3.6 The effect of the above decision is that CICS and CCS, as defined under clauses (zzq) and (zzzh), respectively, of sub section (105) of the section 65 would cover only pure service contracts, without any transfer of property in goods. 3.7 In various decisions the importance of classification of services has been laid down and it has been held that once the show cause notice proposes demand of service tax under a particular category of taxable service, the adjudicating / appellate authorities cannot travel beyond the scope of allegations in the show cause notice and confirm the demand under a different category of taxable service as the assesse was not at all put on notice on the new category of taxable service. These decisions were based on various decisions of higher appellate forums, where it has been held that the show cause notice is the foundation of allegations and the adjudication should be limited to the allegations. Further, as per Section 65 A of the Act, classification of service shall be based on the specific entries and th....