2024 (12) TMI 843

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....ndore in which he upheld the order-in-original dated 30.11.2016 passed by the Assistant Commissioner and rejected the appellant's appeal. 2. We have heard Shri Ashutosh Upadhyay, learned counsel for the appellant and Ms. Jaya Kumari, learned authorized representative appearing for the revenue and perused the records. 3. The appellant worked as a commission agent and received commission to sell plots of M/s DHL Infra Bulls International Pvt. Ltd. DHL As per section 65B (44) of the Finance Act, 1994 the Finance Act this activity of providing services of real estate agent falls under the definition of "service". It was not listed in the negative list of services. As the activity of the appellant fell under the definition of service and i....

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....became taxable only from July 2012. If the amount received by the appellant during the year is proportionally reduced the amount received by it during the period when the service was taxable falls below the threshold limit of Rs. 10 lakhs. (v) Demands cannot be confirmed on the basis of the Form 26AS, therefore, the demand of service tax with interest and penalties deserves to be set aside. (vi) There was no malafide intention of the appellant and, therefore, extended period of limitation could not be invoked. (vii) The impugned order may be set aside and the appeal may be allowed. 5. Learned authorized representative for the Revenue made the following submissions :- (i) The appellant had provided taxa....

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....e appellant during the relevant period was towards commission only. (vi) The service tax was assessed based on the amount paid by the DHL and, therefore, the demands were correctly calculated by the Assistant Commissioner whose order was correctly upheld in the impugned order. (vii) In view of the above, the appeal may be dismissed. 6. We have considered the submissions from both sides. 7. The submission of the learned counsel that the amounts deducted as TDS were subsequently adjusted towards the tax liability of the appellant or is refunded by the Income Tax Department is irrelevant. What is important is how much amount was paid by DHL to the appellant and if it paid the appellant for rendering a taxable service or....