TaxTMI 
TaxTMI 
2025 (11) TMI 858
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....ner of Central Excise Customs Goods and Service Tax, Delhi East, Commissionerate Appeal Central Excise Customs Service Tax, DGCEI Adjudication Cell Hon'ble Ms. Binu Tamta, Member (Judicial) And Hon'ble Ms. Hemambika R. Priya, Member (Technical) For the Appellant : Ms. Shagun Arora, Shri Kunal Aggarwal and Shri Pratyush Pradhan, Advocate For the Respondent : Shri Shashank Yadav, Authorized Representative ORDER BINU TAMTA: The batch of 16 appeals have been filed against the common adjudication order [Order-in-Original No. 03/2018-ST dated 31.01.2018] confirming the demand of show cause notices issued to the appellants. The details of the 16 appeals in the present case is given below:- Sl. No. Appeal No. and Name of the Appellants Show Cause Notice No. and date Order in Original No. and date Period in dispute Demand of Service Tax Confirmed and in dispute (in Rs.) Demand of Penalty under dispute (in Rs.) Demand of Interest under dispute 1. 50236/2019 Vineera Colonisers Pvt. Ltd. SCN dated 20.03.2017, F. No. DZU/INV/ 220/D/ST/ 2014/1673 ('SCN') (Page 129- 379 of Volume I of the Appeal paper book) No. 03/2018- ST dated 31.01.2018, F.....
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.... the Act (not quantified) 5,000/- u/s 77 (1) of the Act 8. 50245/2019 Shikhar LandconPvt. Ltd. SCN dated 20.03.2017, F. No. DZU/INV/ 220/D/ST/ 2014/1680 No. 03/2018- ST dated 31.01.2018, F. No DZU/ Adj/Omaxe / 08/2017/ 14990. July 2012- March 2013, April 2013 to March 2014 and April 2015 to March 2016 2,33,38,200/-u/s 73 (1) of the Act. 1,16,31,606/- and 74,987/- u/s 78 of the Act. U/s 75 of the Act (not quantified) 5,000/- u/s 77 (1) of the Act 9. 50241/2019 Kamini Builders and Promoters Pvt. Ltd. SCN dated 20.03.2017, F. No. DZU/INV/ 220/D/ST/ 2014/1681 No. 03/2018- ST dated 31.01.2018, F. No DZU/ Adj/Omaxe / 08/2017/ 14991. July 2012- March 2013, April 2013 to March 2014 and April 2015 to March 2016 2,30,19,847/-u/s 73 (1) of the Act. 1,14,65,861/- and 88,124/- u/s 78 of the Act. U/s 75 of the Act (not quantified) 5,000/- u/s 77 (1) of the Act 10. 50239/2019 Kashish BuildtechPvt . Ltd. SCN dated 20.03.2017, F. No. DZU/INV/ 220/D/ST/ 2014/1682 No. 03/2018- ST dated 31.01.2018, F. No DZU/ Adj/Omaxe / 08/2017/ 14992. July 2012- March 2013, April 2013 to March 2014, April 2014 to March 2015 and April 2015 to Mar....
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....pment. The appellants have entered into memorandum of understanding with M/s Omax Limited, to collaborate with each other to develop a residential/ commercial project. Under the agreement, Omaxe has agreed to provide funds to the appellant for acquisition of land in its name for and on behalf of Omaxe and to deliver the possession thereof to Omaxe for the purposes of developing the project. The recitals of the MOU provide that the Appellant acquires land in its own name for and on behalf of Omaxe. Clause 4 of the MOU provides that the funds provided by Omaxe to the Appellant shall be exclusively utilized for acquiring land for Omaxe only. Clause 5 provides that the Appellant shall hold the acquired land on trust on behalf of Omaxe and shall have no right to sell or lease the same to any other person except Omaxe or its nominee. Clause 6 requires handing over of possession of acquired land by the Appellant to Omaxe. Clause 10 of the MOU provides for the powers to be exercised by Omaxe. Clause 15 of the MOU requires the Appellant to execute General Power of Attorney in favour of Omaxe which entitles Omaxe to the following: a) To advertise and issue printed material regarding....
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....t only the rights to develop the land, also the marketing and selling rights wherein the land owners has forgone their rights to sale the land. Forgoing of such rights is 'deemed service' in terms of section 66E of the Act. On adjudication, the entire demand of service tax on all the 16 land owning companies was confirmed. 4. Heard Ms. Shagun Arora, learned counsel for the appellant assisted by Shri Kunal Aggarwal and Shri Pratyush Pradhan and Mr. Shashank Yadav, learned Authorized Representative for the Department. 5. Ms. Shagun Arora, learned counsel for the appellant submitted that the issue of transfer of land development rights involves transfer of title in immovable property which stands excluded from the definition of 'service' under Section 65B (44) of the Act and consequently stands excluded from the charge of service tax. She submitted that the issue is no longer res-integra and stands decided in series of decisions:- (a) DLF Commercial Projects Corporations vs. Commissioner of Service Tax, Gurugram [2019 (27) GSTL 712 (Tri.-Chan.)] (b) M/s Genius Probuild Private Limited vs. Commissioner of Central Excise and CGST, Rajasthan [2025-VIL-1636-CESTAT-....
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....s, it is the ownership of the land, which stands transferred effectively by the land-owning company in return of consideration payable by the developers. The moment it is either land or "benefits arise out of land", it goes outside the purview of "Service" as defined in Section 658(44) of Finance Act, 1994. Under the Development Agreement dated 5-12-2006, it is stated that there would be transfer of Development Rights in future and the Developer were permitted to carry out the developmental activities as per clause 2.2 of the Development Agreement, wherein the developer is permitted to enter the scheduled property for carrying out developmental activities. After the developmental activities have been carried out, sale deed is executed among the three parties namely Landowner, Developer and the Purchaser under which the title to the undivided portion of the land is transferred to the various vendees/purchasers from time to time as and when the Conveyance Deed/Sale Deed is executed in future. We further observe that it is not only the possession, which stood transferred with the right to use, enjoy and construct building/super structure, but, at the same time, undivided right, title ....