TaxTMI 
TaxTMI 
2025 (1) TMI 342
X X X X Extracts X X X X
X X X X Extracts X X X X
.... The issue involved in this background is that 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 Rajesh Nathan learned Assistant Commissioner AR appearing on behalf of the revenue appellant reiterates the grounds of appeal. 3. Shri Saurabh Dixit learned counsel appearing on behalf of the assessee respondent at the outset submits that on the very same issue in the appellant's own company's case i.e. Rajni Builders Pvt Ltd this Tribunal vide final order No. 11897-11898/2024 dated 30.08.2024 set aside the demand therefore the present appeal of the revenue is not maintainable. He also placed reliance on the following judgments: * Niliesh Patel - 2023 (5) TMI 97 - CESTAT AHMEDABAD * Premium Real Estate Developers 2018(11) TMI 1472-CESTAT NEW DELHI; * Premium Real Estate Developers 2020(2) TMI 1071- Delhi HC * Rattha Holding Co. P. Ltd. 2018(9) TMI 1722-CESTAT CHENNAI * M.N. Dastur & Co. P. Ltd. 2023(6) TMI 1083-CESTAT KOLKATA 4. On carefully consideration of the submissions made by both the sides and perusal of the records, we find that th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hereafter 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 and share in the profit of the deal in purchase of land. We feel that for levy of service tax, a specific amount has to be agreed....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ociation" 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 the issue of the show cause notice for example, in the case of MoU dated 15-11-2003 entered between Sahara India Ltd. and the appellant, the agreement is for provisioning of 100 acre....
X X X X Extracts X X X X
X X X X Extracts X X X X
....resent 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 DELHI 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 India. Such land was to be arranged by them by way of procurement from the land owners. The appellant was also obligated to examine the title of the prospective land owner and to further ensure the availabili....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 be established, the question of taxing an attendant monetary transaction will not arise. Contributions for the discharge of liabilities or for meeting common expenses of a group of persons aggregating for identified common objectives w....