TaxTMI 
TaxTMI 
TaxTMI 
2022 (12) TMI 602
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....onstruction projects i.e. (i) Iscon Mega Mall at Ahmedabad (ii) Iscon Mall at Surat (iii) Iscon Mega Mall at Rajkot and accounts ledger, it was found that the Appellant was having individual Development Agreements with the Land owners/ construction companies. As per the development agreements, the developers/advisors are responsible for advertisement and marketing of the said commercial projects for inviting purchasers/buyers; advice the owner companies on appointment of the contractors; purchase of raw materials and commercial viability of the project. For the aforesaid services provided by the Appellant‟s company, they were entitled for remuneration at the rate minimum of 2.5% of the total construction cost for the services rendered during the scheme on yearly basis or as mutually agreed from time to time. Statement of land owner companies also recorded during the investigation. Investigation reveal that Appellant has received total amount of Rs. 3,39,33,531/- as development charges @2.5% of the total construction cost from the land owner/ construction companies. After coming to conclusion that the appellant herein had not discharged the Service Tax liability for the amount....
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..../- before issue of show cause notice. In view of CBEC letter No. 137/167/2006-CX.4 dated 03.10.2007, SCN cannot be issued when the service tax along with interest paid prior to issue of SCN. 7. He also argued that the appellant has not collected service tax from the service receivers and therefore provisions of Section 67 will be applicable and benefit of cum tax value is admissible and therefore taxable value is required to be recomputed. He placed reliance on the following decisions. (i) Maruti Udyog 2002(141)ELT 003 (SC) (ii) Rampur Engineering 2006(5)STR 386 8. As regard the imposition of penalty he submits that where service tax and interest have been paid before issuance of show cause notice, penalty under Section 76 and 78 is not leviable. Further, if penalty under Section 78 is imposed, separate penalty under Section 76 is not imposable. 9. Shri G. Kirupanandan, learned Superintendent, Authorised Representative of the Department has, however, supported the impugned order and contended that the demands were correctly confirmed by the Adjudicating authority and the appeal needs to be rejected. 10. We have heard both the sides and perused the records. The issue to be d....
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....onsultancy charges. The said facts are not denied or disputed by the adjudicating authority. It is to be seen on this factual matrix as to whether there was any service rendered by the appellant in the category of real estate agent for receiving development charges. It is common knowledge that the real estate agent transacts the business of sale or purchase of the property, leasing or renting of the property and gets an amount as a commission. Though the definition of real estate consultant talks about evaluation, construction, design, development, construction, implementation, supervision, maintenance, marketing, acquisition or management of real estate, it has to borne out of the record that such services are rendered. As already stated hereinabove that the appellant herein has not rendered any of the services. 12. We also have gone through the relevant contracts/ agreements and find that in development agreement with M/s Chimanlal Properties Pvt. Ltd. appellant is referred to as Developer and M/s Chimanlal Properties Pvt. Ltd. is referred to as owner. The clause 19 of the said agreement provides as under : "19. The Developer shall be entitled to the profit for the services re....
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....mentioned in the schedule hereunder written [hereinafter referred to as the 'said land'] owned by the Pegasus Commercial Co. Op. Society Ltd. (B) SIPL has incurred some expenses on project. However, looking to the size of the project and involvement of work and time, it found that it was not possible for it to handle the scheme alone by itself. At the same time, SIPL has less experience of marketing, liasoning etc. with the Government departments and follow up with the sanctioning authorities, etc. (C) SIPL established contact with SCPL which is in the line of development and construction since many years and requested to combine with it as co-developers to develop the said land and complete the scheme on the said land. (D) SCPL gave its consent and decided to develop the said land jointly. The parties hereto finalized the terms & conditions to which they are desirous of recording into writing by executing this Co-development Agreement being these present:- NOW THIS SUPPLEMENTARY AGREEMENT WITNESSETH AND IT IS HEREBY AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS: 1. The parties of the First Part and Second Part hereto as co-developers have agreed to carry ou....
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....of the First part, save and except which the Party of the Second Part has expressly agreed to. ... 12. In consideration of contributing the expertise and experience agreed to be contributed by the parties of the First part and Second Part hereto entitlement from the project, after deduction of expenses relating to building construction from the gross income offered in Profit and Loss Account shall be as under: Party of the First Part - 75% Party of the Second part - 25% Total: - 100% 13. The parties of the First and Second Part hereto are hereby individually authorized to collect the sale proceeds from prospective purchasers and shall not be obliged to deposit the sale proceeds recovered from the prospective purchasers by them in common pool or joint bank account, if maintained, but retain with them against their own outgoings. 14. Although functional division has been made for the reasons already given and clarified above, the party of the Second Part shall as often a possible visit and observe the progress of the scheme on site, an actively contribute and cooperate in all respects with the party of the First Part in solving all difficulties and hurdles in the implemen....