TaxTMI 
TaxTMI 
2025 (5) TMI 1019
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....credit of Rs.63,07,843/- during the period from August 2012 to September 2015. b. "Non-payment of service tax on consideration received towards construction / development of parking area in 'The Promont' Project, during the period from March, 2012 to September, 2012" and the amount involved is Rs.3,19,777/-. c. Non-payment of service tax on the consideration received towards development costs from M/s. Promont Hilltop Private Limited by wrongly claiming it as 'Sale of Development Rights', in respect of 'The Promont' Project, during the period from October, 2012 to June, 2015 and the duty amount involved is Rs. 5,54,63,589/-. d. Non-payment of service tax on compensation received towards cancellation/termination of Joint Development Agreement and Power of Attorney dated 06 January, 1998 and Supplemental Agreement dated 22nd May, 1998 entered into with Smt. Divya Singh, Ms. Beejaksharee Varman and Mr. Tika Sahil Varman, on 10th April, 2013 under the declared service category listed in Section 66E(e) of the Finance Act, 1994 and the amount involved is Rs. 24,72,000/- . e. Non-payment of service tax on income recognized as for....
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....gible to Service Tax. Issue is no longer res integra. (iv) Demand of service tax of Rs.5,80,728/- towards non-reversal of proportionate cenvat credit attributable to retention charges is unsustainable. • Rule 4(7), as it existed during the relevant period, is linked with the invoice/bill/challan of input service, and not with payment of invoice. Thus, Appellant is entitled to CENVAT credit equal to amount of service tax. Issue is no longer res integra. (v) Demand of service tax of Rs.3,19,777/- on consideration received towards construction/development of parking area in the 'THE PROMONT' project is agreed and will be paid. • Since the Appellant is unable to retrieve documents pertaining to this issue, they are unable to effectively contest the demand. Hence, the Appellant is accepting this demand and shall undertake to pay the same. • However, it is submitted that the demand itself is based on details provided by the Appellant. Thus, imposition of penalty is contested. (vi) Demand of service tax of Rs.2,06,186/- for non-payment of tax under Section 66E(e) on forfeitures from customs on cancellation of bookings is unsustainable. ....
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....nted in the books of accounts. As the transaction has already been accounted by the Appellant he ought to have paid service tax on such import of services on the whole amount. 4. Learned Authorised Representative for the Revenue reiterated the findings of the impugned order made the following submissions: • There is no doubt about the fact that sale of flat after completion certificate is an exempted service and in respect of exempted service Rule 6 of CENVAT credit Rules is attracted. As they have not opted for any of the provisions contained in Rule 6 of CCR 2004 the department is left with no option but to charge 6% on the value of exempted services. • In respect of sale of parking space what is demanded is the works contract service rendered for developing the parking lot and not the sale of immovable property per se. Hence the claim of the Appellant that it is a sale of immovable property cannot be accepted. • In respect of receipt of Development cost from promount Hilltop it is to submit that the same is for works contract done uptill the point of transfer. The Appellant had incurred expenses towards developing the land and buildings ....
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....ervice tax paid on input services used in construction of such flats that were sold after obtaining Occupancy Certificate. The claim of the appellant is that sale of flats after grant of Completion Certificate amounts to sale of immovable property, and such activity is specifically exempted from scope of taxable activity under Section 66E(b) of Finance Act, 1994 and Section 65B (44) specifically lays down that 'service' does not include an activity which constitutes merely a transfer in title of immovable property, by way of sale, gift or in any other manner. It is stated that for the period prior to 01.04.2016, cenvat credit availability is not hit if the eligibility is met at the time of its availment. By virtue of exception in Section 65B (44), sale of flats after grant of Completion Certificate becomes a 'non-service'. Only with effect from 1st April 2016, Explanation 3 was added to Rule 6 of Cenvat Credit Rules (CCR), 2004 vide Notification No. 13/2016- C.E. (N.T.) dated 1st March 2016, to create a deeming fiction that 'an exempted service under Rule 2(e) shall include an activity which is not a service as defined in Section 65B(44) of Finance Act, 1994'. In other words, prior....
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.... (iii) a transaction in money or actionable claim" As per the above definition, any activity carried out for consideration was a service rendered and it also included in 'declared services' which was defined under Section 66E as 'the following shall constitute declared services, namely: - a. Renting of immovable property; b. Construction of a complex, building, civil structure, or a part thereof, including a complex or building intended for sale to a buyer, wholly or partly, except where the entire consideration is received after issuance of completion -certificate by the competent authority. Therefore, Section 65B(44) read with Section 66E, construction and sale of flats for consideration are liable to pay service tax except where the entire consideration is received after issuance of completion-certificate, thus, implying that the flats sold after receipt of completion-certificate and the consideration received after that are exempted from service tax, so the question of availing cenvat credit on the flats sold after receipt of completion certificate does not arise. Rule 2(e) of the Cenvat Credit Rules, during the relevant period reads as follows: ....
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....redit (Third Amendment) Rules, 2016 vide Notification No. 13/2016-C.Ε. (Ν.Τ.) dated 01.03.2016 w.e.f. 01.04.2016: (1) The CENVAT credit shall not be allowed on such quantity of input as is used in or in relation to the manufacture of exempted goods or for provision of exempted services or input service as is used in or in relation to the manufacture of exempted goods and their clearance upto the place of removal or for provision of exempted services and the credit not allowed shall be calculated and paid by the manufacturer or the provider of output service, in terms of the provisions of sub-rule (2) or sub-rule (3), as the case may be : Provided that the CENVAT credit on inputs shall not be denied to job worker referred to in rule 12AA of the Central Excise Rules, 2002, on the ground that the said inputs are used in the manufacture of goods cleared without payment of duty under the provisions of that rule. Explanation 3. For the purposes of this rule, exempted services as defined in clause (e) of rule 2 shall include an activity, which is not a 'service' as defined in Section 65B(44) of the Finance Act, 1994. 6.4 From the above ....
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.... separate CA Certificates dated 03.07.18 as well as letter dated 26.04.18 issued by both the Appellants to the Revenue Authorities, intimating the fact of proportionate availment of Cenvat credit in the above manner. The said certificates are also supported with detailed certified workings and calculations, along with invoices on sample basis, which shows that while a higher service tax was actually paid on input services, the Appellants had availed only proportionate credit based on the percentage of immovable property which had suffered service tax levy in the manner stated hereinabove". Based on these facts, the Tribunal concluded as follows: "24. The specific questions framed in this regard therefore have to be answered as follows: a. For the above reasons, the Appellants are not liable to pay 8%/10% amount of value of service became exempted after receipt of completion certificate under Rule 6 of the CCR, 04. b. The Cenvat Credit on input services received after obtaining Completion Certificate cannot be wholly allowed to the Appellant, and since they had availed only proportionate credit by maintaining separate accounts, the same is therefore suf....
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.... by virtue of the deeming fiction created. 14. As per rule 3 of the Rules, Cenvat credit of service tax paid on input services used to provide output service, is eligible. In the facts of present case, it is evident that the respondent has started taking only proportionate credit after receipt of completion certificate which was after due intimation to the revenue department and also certified by independent CA. Therefore, rule 6 of the Rules in toto cannot apply prior to 13.4.2016 to the facts of the case since sale of immovable property is not exempt service at all. Therefore, in the light of the provisions of Rule 3 of the Rules, respondent cannot avail full Cenvat credit on input services received after obtaining completion certificate. Hence, the respondent cannot be expected to pay an amount equal to 8%/10% of sale price of immovable property after obtaining such completion certificate where no service tax is paid as if it is sale of immovable property since Rule 6 of the Rules perse does not apply to the present case until 13.4.2016 at all. 15. Even after 13.4.2016, since the respondent had availed only proportionate credit, the respondent was not legally r....
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.... after the receipt of completion certificate are considered to be sale of immovable property, they are not liable to pay service tax. The Explanation (3) introduced under Rule 6 of the Cenvat Credit Rules, 2004 w.e.f. 01.04.2016 only explains that the above clearances under Section 65B(44) are deemed to be exempted services. Even without this Explanation, there is no doubt that the clearances under Section 65B(44) are not liable to service tax in view of the fact that Section 66E clearly held that the flats sold after the receipt of the Completion Certificate are not liable to service tax, hence, the question of availing cenvat credit on such services does not arise. Therefore, the appellant has to necessarily reverse the proportionate credit availed on such flats which have been sold and consideration received on or after receipt of the Completion Certificate. At para 21.2, the learned Commissioner notes that the appellant has stated that the ineligible input credit has to be computed as per Rule 6(3A) which works out to Rs.29,67,608/- as against the demand of Rs.63,07,843/- by the Revenue. In view of the above discussions, we hold that appellants are required to reverse the cenva....
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....Proceeds. 23.3.2. In terms of the Supplementary Agreement dated 21st November, 2012 entered into with M/s Promont Hilltop Private Limited, the ratio of revenue sharing was amended / modified. As per the amendment, the noticee would receive the following as their share of revenue: (a) an amount equivalent to Rs.124,88,00,208/- which is inclusive of the development costs; and (b) an amount equivalent to 2.5% of the Gross Proceeds received by M/s Promont Hilltop Private Limited within each calendar quarter to be paid by M/s Promont Hilltop Private Limited to M/s Tata Housing Development Company Limited within 15 days from the end of each calendar quarter over the life of the Project". 8.2 The above facts are not in dispute. It is also a fact the Development Agreement dated 18th October, 2012, entered into by the appellant defined 'Development costs' means "the entire cost and expense of Development and construction, marketing and sales of the Project including cost of obtaining Approvals, third party costs to be incurred by and on behalf of PROMONT for the Project, interest paid/payable to any banks / financial institutions for any loans, finance ....
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.... 8.5 Let's examine the clauses of the agreement to see whether the amounts are in the nature of sale proceeds of the immovable property or it is the remuneration received for the sale of development rights. The relevant Clauses G and I are reproduced below: "G. In pursuance to the discussions between the parties, PROMONT has agreed to undertake the Development of the Project, inter alia by construction of the Said Premises (defined hereunder) In accordance with the provisions of this Agreement. I. The Parties shall do all such acts, deeds and things and render all possible assistance to each other as may be necessary and expedient to facilitate the Development of the said Property, Including registering the same with the concerned registration authorities." 8.6 The above Clause-G does not speak of any sale or transfer but states that PROMONT undertakes the development of the project as per the provisions of the agreement and there is no dispute that the amount received by the appellant is towards the development cost which includes development, construction, marketing, etc. Moreover, the 'Project' has been defined as development of the said premises on the s....
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....lated, Tata Housing and PROMONT shall jointly execute Documents and Instruments necessary for the Transfer in favour of the Transferees, an undivided share in the said Property, as requested by PROMONT. ...... 10.7. Negotiate for and raise loans or funds for the Development and completion of the Project and to create mortgage, charge or other encumbrance on the said Property and/or the Sald Premises and execute and register necessary Documents and Instrument/s for the purpose. On its part, Tata Housing shall facilitate such loans by creating appropriate mortgage, charge or other Encumbrance on the said Property and executing and registering necessary Documents and Instrument/s for the purpose, if so desired by PROMONT in that behalf. Additionally, Tata Housing agrees and confirms that it shall execute the Documents, If any, required by bank/financial institution or other parties from whom the finance will be arranged, upon the intimation of the same by PROMONT. 10.8 Together with Tata Housing, appear before the concerned registration and other Authorities for the purpose of registering any Documents and Instruments and to present the same before them and ....
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....towards the reimbursement of any cost incurred towards execution of a tentative project on the said Property. As per the 'Deed of Cancellation' of Joint Development Agreement and 'Power of Attorney' dated 6th January, 1998 and 'Supplemental Agreement' dated 22nd May, 1998 and 'Deed of Cancellation' dated 10th April, 2013, the rights, title, interests and claims whatsoever accruing to M/s. Tata Housing Development Company Limited in respect of the said Property by virtue of the said Agreements and Power of Attorney, would, upon execution of this Deed of Cancellation, be extinguished fully and subsequent to execution of this Deed of Cancellation, the Parties would unconditionally withdraw the disputes filed against each other and M/s. Tata Housing would not thereafter claim any rights, title and interest in the said Property or any part thereof. These facts are not in dispute and a total sum of Rs.2,00,00,000/- was received by way of compensation for relinquishing its rights under the said Agreements and Power of Attorney and towards reimbursement of cost incurred towards execution of a tentative project on the said Property in full and final settlement. The Commissioner referrin....
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.... August, 2022, which has been adopted for Service tax demands under Section 66E(e) vide Circular No. 214/1/2023-S.T. dated 28th February, 2023. Reliance is also placed on South Eastern Coalfields Limited vs. CCE: 2023 (12) TMI 1241 - CESTAT New Delhi and Commissioner vs. Repco Home Finance Ltd.: 2020 (7) TMI 472 - CESTAT Chennai. 9.3 We have perused the Deed of Cancellation of Joint Development Agreement dated 22.05.1998 which is placed on record which reads 'that the owners have agreed to pay the developer a sum of Rs.2,00,00,000/- (Rupees Two crores Only) upon the execution of this Cancellation Deed being compensation for relinquishing its rights under the said agreements and Power of Attorney and for reimbursement of cost incurred towards execution of its project on the said property'. Therefore, it is clearly a compensation paid to the appellant and the Board's circulars relied upon the appellant are reproduced below: Liquidated damages - Levy of Service Tax on declared services in "Agreeing to the obligation to refrain from an act, or to tolerate an act or a situation, or to do an act" under Section 66E(e) of Finance Act, 1994 - Clarification C.B.I. & C. C....
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....tract to do something or to abstain from doing something cannot be said to have taken place unless there are two parties, one of which expressly or impliedly agrees to do or abstain from doing something and the other agrees to pay consideration to the first party for doing or abstaining from such an act. Such contractual arrangement must be an independent arrangement in its own right. There must be a necessary and sufficient nexus between the supply (i.e. agreement to do or to abstain from doing something) and the consideration. 5. The issue also came up in the CESTAT in Appeal No. ST/50080 of 2019 in the case of M/s. Dy. GM (Finance) Bharat Heavy Electricals Ltd. in which the hon'ble Tribunal relied on the judgment of divisional bench in case of M/s. South Eastern Coal Fields Ltd. v. CCE, Raipur {2021(55) G.S.T.L. 549 (Tri. - Del.)}. Board has decided not to file appeal against the CESTAT order ST/A/50879/2022-CU[DB], dated 20-9-2022 in this case and also against Order A/85713/2022, dated 12-8-2022 in case of M/s. Western Coalfields Ltd. Further, Board has decided not to pursue the Civil Appeals filed before the Apex Court in M/s. South Eastern Coalfields Ltd. supra (C.A.....
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....39; in a contract. Further, such amounts do not constitute payment (or consideration) for tolerating an act, because there cannot be any contract. (a) for breach thereof, or (b) for holding more stock than permitted under the mining contract, or (c) for leaving the employment before the agreed minimum period or (d) for doing something leading to the dishonour of a cheque. As has already been stated, unless payment has been made for an independent activity of tolerating an act under an independent arrangement entered into for such activity of tolerating an act, such payments will not constitute 'consideration' and hence such activities will not constitute "supply within the meaning of the Act. Taxability of these transactions is discussed in greater detail in the following paragraphs. Liquidated Damages 7.1 Breach or non-performance of contract by one party results in loss and damages to the other party. Therefore, the law provides in Section 73 of the Contract Act 1872 that when a contract has been broken, the party which suffers by such breach is entitled to receive from the other party compensation for any loss or damage caused to him by such breach. The....
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....he liquidated damages to refrain from or tolerate an act or to do anything for the party paying the liquidated damages, in such cases liquidated damages are mere a flow of money from the party who causes breach of the contract to the party who suffers loss or damage due to such breach. Such payments do not constitute consideration for a supply and are not taxable." 9.5 In view of the above, we do not find any reason to agree with the Commissioner in as much as the amounts received were only a compensation and not a consideration for any service rendered by the appellant, hence, the demand of 24,72,000/- stands set aside. (e) Non-payment of service tax of Rs.2,06,186/- on income recognized as forfeiture income' on account of cancellation of bookings. 10.1 Section 66E(e) of the Finance Act, 1994, reads as 'agreeing to the obligation to refrain from an act, or to tolerate an act or a situation, or to do an act'. The Revenue claims that any act of agreeing to the obligation to refrain from further development of the residential flat booked by the prospective buyer, collection of the remaining instalments to tolerate a situation of the prospective buyer cancelling t....
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....by the Purchasers and rescind this Agreement and allot the Schedule 'B' Property, to any other person on such terms and conditions as they deem fit The balance money if any, due to the Purchaser shall be paid within 6 (Six) weeks from the date of disposal of the Schedule C Property to any other third party after deducting administration charges if any; Provided that the cancellation of this Agreement will result in the cancellation of the Agreement for the construction of the Schedule B Property"; 10.4 Therefore, the amount collected to adjust as liquidated damages in terms of the Board Circular, the relevant para reproduced below, it cannot be considered as receipt of consideration on rendering of any service. "7.1.5 Examples of such cases are damages resulting from damage to property, negligence, piracy, unauthorized use of trade name, copyright, etc. Other examples that may be covered here are the penalty stipulated in a contract for delayed construction of houses. It is a penalty paid by the builder to the buyers to compensate them for the loss that they suffer due to such delayed construction and not for getting anything in return from the buyers. Similarly....
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....ch services provided by these service providers. The appellant had retained a portion of the gross value of the service provided by the service providers as per the Contracts entered into with them and these retention charges would be paid back only upon satisfactory completion of the residential projects. Since, the appellant had not paid retention charges to the service providers within three months, as envisaged under Rule 4(7) of the CCR,2004, the Revenue demanded reversal of cenvat credit availed on such input services in terms of Rule 4(7) of CCR,2004 along with applicable interest under Rule 14 of the CENVAT Credit Rules, 2004. 12.2 The Learned Counsel submits that the fact that the appellant had retained a sum of Rs.98,45,774/- and had not paid the retention charges within 3 months as required by Rule 4(7) of CCR, 2004 is not under dispute. It is submitted that Rule 4(7) during the relevant period is linked with the invoice/bill/challan of input service and not with payment of invoice, hence, the appellant is entitled to CENVAT credit equal to amount of service tax. It is further claimed that the issue is no longer res integra in as much as the amended Rule 4(7) w.e.f. 1....
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....sal of cenvat credit is set aside. Consequently, reversal of proportionate input service tax of Rs.5,80,728/- is set aside. 13.1 Learned Authorised Representative for the Revenue submits that with regard to limitation, Revenue claims that the appellant had suppressed the facts namely transfer of development activities in the guise of 'sale of development rights' and receipt of consideration from M/s. Promont Hilltop Private Limited towards such transfer of development activities; Cancellation of Joint Development Agreement entered into with Smt. Divya Singh, Ms. Beejaksharee Varman and Mr. Tika Sahil Varman and receipt of around two crores rupees from them; Retention of certain amount under forfeiture income towards cancellation of flats and has not paid an amount equal to 6/7% of value of exempted service and non-reversal of cenvat credit taken on input services proportionate to the amount retained by them, to the department. It is stated that despite being registered with the department since 12/09/2008 as a provider of taxable service under various categories of services, the appellant failed to comply with the provisions of the Finance Act, 1994 and rules made thereu....
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.....L.T. 401 (S.C.)], the Supreme Court examined Section 11A of the Central Excise Act, 1944 which was worded similar to Section 73 of the Finance Act, 1994 and held as follows: " 4. Section 11A empowers the Department to re-open proceedings if the levy has been short-levied or not levied within six months from the relevant date. But the proviso carves out an exception and permits the authority to exercise this power within five years from the relevant date in the circumstances mentioned in the proviso, one of it being suppression of facts. The meaning of the word both in law and even otherwise is well known. In normal understanding it is not different that what is explained in various dictionaries unless of course the context in which it has been used indicates otherwise. A perusal of the proviso indicates that it has been used in company of such strong words as fraud, collusion or wilful default. In fact it is the mildest expression used in the proviso. Yet the surroundings in which it has been used it has to be construed strictly. It does not mean any omission. The act must be deliberate. In taxation, it can have only one meaning that the correct information was not disclo....
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....y assessee operates under self-assessment and is required to self-assess and pay service tax and file returns. If some tax escapes assessment, section 73 provides for a SCN to be issued within the normal period of limitation. This provision will be rendered otiose if alleged incorrect self-assessment itself is held to establish wilful suppression with an intent to evade. To invoke extended period of limitation, one of the five necessary elements must be established and their existence cannot be presumed simply because the assessee is operating under self-assessment. 17. The argument that the appellant had not disclosed in its returns that it was availing and using ineligible CENVAT credit also deserves to be rejected. The appellant cannot be faulted for not disclosing anything which it is not required to disclose. Form ST-3 in which the appellant is required to file the returns does not require details of the invoices or inputs or input services on which it availed CENVAT credit and the appellant is not required to and hence did not provide the details of the CENVAT Credit taken. It also needs to be pointed out that the Returns are filed online and therefore, it is also no....
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....essment by the Central Excise Officer under section 72. This section reads as follows: "72. Best judgment assessment. If any person, liable to pay service tax,- (a) fails to furnish the return under section 70; (b) having made a return, fails to assess the tax in accordance with the provisions of this Chapter or rules made thereunder, the Central Excise Officer, may require the person to produce such accounts, documents or other evidence as he may deem necessary and after taking into account all the relevant material which is available or which he has gathered, shall by an order in writing, after giving the person an opportunity of being heard, make the assessment of the value of taxable service to the best of his judgment and determine the sum payable by the assessee or refundable to the assessee on the basis of such assessment." 20. Thus, 'the central excise officer' has an obligation to make his best judgment if either the assessee fails to furnish the return or, having filed the return, fails to assess tax in accordance with the Act and Rules. To determine if the assessee had failed to correctly assess the service tax, the central excise offi....
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....onducted, the incorrect availment of CENVAT credit would not have come to light is neither legally correct nor is it consistent with the CBEC's own instructions to its officers. 23. For the sake of completeness, it needs to be pointed out that the aforesaid Manual provides for two levels of scrutiny- preliminary scrutiny of all Returns and Detailed Scrutiny of some Returns selected based on some criteria laid down in it. Relevant extracts of the manual are as follows: 1.2A Service Tax administration has had the benefit of building on the experience of Central Excise administration which is an older tax going back to 1870. More recently, in July 2000, under the CIDA-assisted capacity building project, a detailed business process reengineering exercise was initiated. For the first time, key business processes were identified and small working groups set up to examine each business process and suggest qualitative improvements to enhance revenue efficiency and ensure taxpayer satisfaction. The business re-engineering exercise conducted for returns' scrutiny revealed the need to distinguish between preliminary scrutiny and detailed scrutiny in a two-tier scrutiny proce....
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.... a) The appellant assessee was required to file the ST 3 Returns which it did. Unless the Central Excise officer calls for documents, etc., it is not required to provide them or disclose anything else. b) It is the responsibility of the Central Excise Officer with whom the Returns are filed to scrutinise them and if necessary, make the best judgment assessment under section 72 and issue an SCN under Section 73 within the time limit. If the officer does not do so, and any tax escapes assessment, the responsibility for it rests on the officer. c) Although the Central Excise Officer is empowered to scrutinise all the Returns call for records and if necessary, make the best judgment assessment, if, as per the instructions of CBIC, the officer does not conduct a detailed scrutiny of same Returns and as a result is unable to discover any short payment of tax within the period of limitation, neither the assessee nor the officer is responsible for such loss of revenue. Such a loss of Revenue is the risk taken by the Board as a matter of policy. d) Extended period of limitation cannot be invoked unless there is evidence of fraud or collusion or wilful mis....