TaxTMI 
TaxTMI 
2024 (4) TMI 392
X X X X Extracts X X X X
X X X X Extracts X X X X
....hese four appeals, the Appellant/Assessee - M/s Aparna Constructions & Estates Pvt Ltd is in appeal against the impugned OIOs, the details of which are as follows:- Appeal No. ST/30290/2016 ST/30291/2016 Period of Dispute October 2008 to March 2013 April 2013 to March 2014 Date of SCN 22.09.2014 23.03.2015 Date of OIO passed by Commissioner 31.12.2015 31.12.2015 Demand of Service Tax under Section 73(2) of the Finance Act, 1994 (Issues): (A) Mis-classification of ongoing construction of complex services under WCS Rs.36,34,718/- (B) Non-payment of service tax under WCS on land owner's share Rs.30,68,329/- (C) Short payment of service tax due to noni....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... service tax department under the category of 'Construction of Residential Complex service', 'Works Contract service' and some other services. Based on the audit of the records, vide SCN dt.22.09.2014 read with Corrigendum dt.03.03.2015 was issued alleging non-payment of service tax on various counts (as detailed in the table above), proposing to demand service tax. Thereafter, another SCN dt.23.03.2015 was issued proposing to demand service tax for the period April 2013 to March 2014 as above mentioned in the table. All the appeals are taken up together as they belong to the same assessee and the issues are more or less common. 5. Heard the parties and perused the records as well as the written submissions filed by both the parties. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r the agreed ratio of sharing, they share the constructed area. Thus, the activity is in the nature of a Joint Venture/ Partnership on Principal to Principal basis. There is no relation of service provider and service receiver between the land owner and the Appellant/ builder. We find that this issue stands decided in favour of the Appellant in the precedent order of this Tribunal in V. Green Projects vs CCT [2019 (20) GSTL 568 (Tri-Hyd)]. We find that similar view has been expressed by the CBEC vide Circular No. 151/2/2012-ST dt.10.02.2012 read with Circular No. 108/2/2009- ST dt.29.01.2009. 8. The next issue (C) is regarding allegation of short payment of service tax due to non-inclusion of amounts received prior to execution of sale d....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ered as an amount received towards any intended service. Such advance amount is not towards any taxable service but for an immovable property and as such, does not come under the scope of section 67 of the Finance Act 1994. We further hold that when the semi-finished flat/dwelling unit is sold to buyer, it is a sale of immovable property and outside the purview of Finance Act 1994 for levy of service tax. Such sale transaction is subjected to appropriate Stamp duty and VAT, as applicable. Accordingly, we allow this ground in favour of the Appellant and against the Revenue. 9. The next issue (D) is also with regard to non-payment of service tax on sale deed under the head WCS. As this issue is similar to issue number (C), this ground also....
X X X X Extracts X X X X
X X X X Extracts X X X X
....CCR, although with some delay. The reversal of proportionate Cenvat credit under Rule 6(3) is with regard to input services like Advertisement, Project Consultancy services, Security services, Management, Maintenance and Repair service, Manpower services, Installation services, Project Evaluation services, etc., which have been used both for taxable and non-taxable services. The non-reversal of proportionate credit was, according to the Appellant/Assessee, an inadvertent mistake and not with any deliberate or contumacious conduct for evading tax. Admittedly, Appellant has reversed an amount of Rs.1,43,27,894/- on 31.12.2013 prior to issue of SCN. Under such admitted fact, Revenue has not demanded reversal of any amount under Rule 6(3) but h....