TaxTMI 
TaxTMI 
TaxTMI 
2024 (6) TMI 710
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.... the Appeals were dismissed. In the present case, the facts are identical emanating from the same Lease Agreement entered into with the Rajarhat IT Park Ltd. (lessor) and the present Appellant (lessee). The Appellants have entered into an Agreement to take on lease with Rajarhat IT Park Ltd. The lessors have leased out the property for 99 years and for the consideration received on this count, they have charged the Service Tax. The Appellants have taken the view that the service provided by the service provider is not that of "renting of immovable property", but it is that of "construction services". 2. As per the Appellant, the service provider would be eligible to get the benefit of exemption Notification No. 26/2012, dated 20th June 201....
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.... in a position to prove that the cost of land has been included in the total consideration received by Rajarhat. Finally, he has held that unless these three points are proved, the Appellant cannot claim that the service provider should have paid the Service Tax only on the balance 30% of the consideration so as to claim the present refund and after this he has dismissed their Appeal. 5. I had gone through the Agreement of Lease of Rajarhat IT Park Ltd. when deciding the earlier Appeal on identical issue wherein the present Lease Deed was involved. I find that it is a pure Lease Agreement. Nowhere, is it specified that it is a part of any Sale Agreement or Sale Deed. On going through the receipts issued by Rajarhat, it is seen that they ha....
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....unt itself. 7. However, I see that this issue was not the part of Show Cause Notice issued by the Department as is being rightly pointed out by the Learned Counsel. However, the Department has given enough chance to the Appellant to prove that the service provider has not availed the Cenvat Credit and has paid the Service Tax received from the Appellant and also to show that the cost of land has been included in the total lease value charged by them. 8. Both the lower authorities have clearly held that no evidence in a proper form has been provided by the Appellant to satisfy these queries and the Adjudicating Authority has rejected their refund claim on this ground and even the lower Appellate Authority has dismissed their Appeal only on....
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....ent of the S. Tax amount to the Govt. Account, the claimant stated that they have no documents to show. He also stated that they have produced the copies the demand-cum-service Invoice of the builder as proof of payment of S. Tax to the builder at higher rate as raised, which shows collection of S. Tax at 12.36% by the Builder (M/s RITP) from the claimant. They requested for 7 (seven) days' time to make a written submission in this regard and requested to sanction the refund. But so far no further written submission has been made by the claimant in this regard. 2.4 I find that the claimant has not submitted any document relating to the taxable value, Service Tax liability, assessment details/documents showing taxable value and Servic....
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..... I find that the claimant is registered under S. Tax under this Division as a non-assessee; as such no assessment documents and Returns or payment of S. Tax details etc. are available in the Range office or in ACES for verification in this regard by the Range officer here. 2.8. I find that the claimant could not furnish the supporting documents in relation to the claim filed by them, without which the claim cannot be allowed and therefore, liable for rejection and the case laws cited by the claimant in this regard do not give any support to the claimant in this case." [Emphasis supplied] 9. The relevant portion of the OIA is extracted below:- "5.2. From records it reveals that the appellant has not submitted any document relating....
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....(in case builder) should have issued credit note in favour of service receiver i.e. the appellant and then filed refund application before department, if excess tax has been deposited in Government Account instead of actual tax. But in the instant case, it has not done so. 5.3. Further, I find that the appellant failed to provide the supporting documents such as documents of assessment of taxable value and S. Tax, proof of payment of S. Tax to the Govt. Account in proper head for verification without which the tax liability and any payment or any excess payment cannot be verified in respect of the assessment for the said period, which can be done by the respective assessing officer of the concerned jurisdiction only." [Emphasis suppli....