TaxTMI 
TaxTMI 
2024 (8) TMI 1448
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.... in such transaction. The entire sale price suffers Stamp duty, include the component of advance as well as mark up being received back by the appellant. Such arrangement may involve stand alone buyer or buyer of residential / commercial units, if the parcel of land was developed by someone, and sold to individual buyers as residential / commercial property wherein the appellant simply acts as confirming party. In such circumstances, the entire sale price would have also suffered Service Tax. In the above background, the short issue involved in the present appeal is, whether having sold the land which was intended to be purchased initially for a profit, attracts the levy of Service Tax under the Service category of "Real Estate Agent". 2. Shri. Saurabh Dixit, Learned Counsel appearing on behalf of the appellant at the outset submits that this issue is no longer res integra as the same has been decided in various judgments as relied below: Nilesh Patel 2023(5) TMI 97-CESTAT AHMEDABAD Premium Real Estate Developers 2018(11) TMI 1472- CESTAT NEW DELH Premium Real Estate Developers 2020(2) TMI 1071- Delhi HC Rattha Holding Co. P. Ltd. 2018(9) TMI ....
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....ed with the title of the seller, entered into agreement with the seller and obtained power of attorney, in their favour. Thereafter the appellant transferred the land in favour of Sahara India. Thus we find that the transaction is one of trading in land. In such transactions the appellant could either incur a loss or have a surplus (profit). 28. From the perusal of Memorandum of Understanding (MoU) between the appellant and M/s. Sahara India Ltd. It is very obvious that MoU is not only for providing purely service for acquisition of the land but involves many other function such as verification of the title deeds of the persons from whom the lands are to be acquired and obtaining necessary rights for development of the land from the Competent Authority. The remuneration or payment for providing this activity has actually not being quantified in the MoU. The MoU provides that "the difference, if any, of the amount being actually paid to the owner of the land and the average rate shall be payable to the second party (appellant). It is very clear from the provision of the MoU that the amount payable to the appellant is not quantified and it is more of the nature of a margin a....
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.... of the individuals that is not attributable to an identifiable activity be deemed to be a consideration that is liable to be taxed merely because a "club or association" is the recipient of that contribution. 14. ... To the extent that any of these collections are directly attributable to an identified activity, such fees or charges will conform to the charging section for taxability and, to the extent that they are not so attributable, provision of a taxable service cannot be imagined or presumed. Recovery of service tax should hang on that very nail. Each category of fee or charge, therefore, needs to be examined severally to determine whether the payments are indeed recompense for a service before ascertaining whether that identified service is taxable. 29. We feel that since the specific remuneration has not been fixed in the deal for acquisition of the land we are of the view that both the parties have worked more as a partner in the deal rather than as an agent and the principle, therefore we are of view that taxable value itself has not acquired finality in this case. 30. It is also seen that some of the MoUs were not fully executed at the time of....
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....e of transaction, it was held that assessee cannot be charged with service tax under 'Real Estate Agent'. Following the said decision of this Tribunal, we are of the view that in the facts of present case the appellant's activity does not fall under the category 5 ST Appeal No. 13203 of 2013-DB of Real Estate Agent Service, hence service tax demand under the said head cannot be sustained. Accordingly, the impugned order is set-aside and the appeal is allowed with consequential relief if any, in accordance with the law" Premium Real Estate Developers 2018(11) TMI 1472- CESTAT NEW DELH is reproduced below: "27. Having considered the rival contentions and on perusal of record, we find that there is no consideration defined and/or provided for the alleged service. In absence of any defined consideration for the alleged service, there is no contract of service at all, and hence the transaction is not liable to service tax. Under the facts and circumstances we find that the appellant entered into an agreement of 22 ST/50103-50104/2014 trading in land, wherein they agreed to transfer, a measurement or area of land, in a particular area in favour of the Sahara In....
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....service activity to be undertaken should be direct and clear. Unless it can be established that a specific amount has been agreed upon as a quid pro quo for undertaking any particular activity by a partner, it cannot be assumed that there was a consideration agreed upon for any specific activity so as to constitute a service. In Cricket Club of India v. Commissioner of Service Tax, reported in 2015 (40) S.T.R. 973 it was held that mere money flow from one person to another cannot be considered as a consideration for a service. The relevant observations of the Tribunal in this regard are extracted below : "11. ...Consideration is, undoubtedly, an essential ingredient of all economic transactions and it is certainly consideration that forms the basis for computation of service tax. However, existence of consideration cannot be presumed in every money flow. ... The factual matrix of the existence of a monetary flow combined with convergence of two entities for such flow cannot be moulded by tax authorities into a taxable event without identifying the specific activity that links the provider to the recipient. 12. ... Unless the existence of provision of a service can....