TaxTMI 
TaxTMI 
2026 (1) TMI 1229
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.... appellant to be on account of commission and premium towards transfer of right in land created by banakhat. Out of above commission amount, appellant paid service tax of Rs.8,88,439/- on an amount of Rs.86,25,621/- .The appellant neither filed proper ST-3 returns nor paid the service tax on the said amount. After completing investigation, a show cause notice dated 21.04.2016 was issued to the appellant demanding service tax of Rs.33,40,123/- on the balance commission amount towards Business Auxiliary Service along with interest under Section 75 and penalty under Section 78 of the Finance Act, 1994. 1.1 It was also found that the appellant had shown commission income of Rs.4,27,20,445/- for the year 2011-12. During audit, they agreed and paid service tax of Rs.34,67,440/- on commission income of Rs.3,36,64,565/- but did not agree to pay service tax on the remaining amount of Rs.90,56,280/- stating to be relating to sale of agricultural produce. After conducting investigation, the department issued show cause notice dated 11.11.2016 asking them to pay service tax of Rs.9,32,797/- under Business Auxiliary Service along with interest and penalty under Section 77, 77(l)(a) and penal....
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....tion 3(26) of the General Clauses Act. The Tribunal relied upon the judgment of Hon'ble Bombay High Court in para 16 in the case of Shadoday Builders Pvt. Ltd. and Ors. Vs. Joint Charity Commissioner and Ors. and held that any benefit arising out of the land is immovable property. c) The appellant acquired interest in the land by virtue of agreement to sale dated 25.08.2010 and that right they surrendered/ sold at a premium which was higher because of developments happening in that area in 2010-11. d) Learned Commissioner (Appeal) has travelled beyond show cause notice which never doubted genuineness of agreement and the final sale deed which is duly registered and payments are received through banking channel and they have also claimed short term capital gain in their Income Tax returns. Hon'ble Tribunal in the case of Elegant Developers Vs. Commissioner of Service Tax, New Delhi reported at 2019 (29) GSTL 477 (Tri.-Del.) in para 31, 32 and 33 held that purchase and sale of land was on principal-to-principal basis and assessee may have surplus/ profit or incurred loss. e) They also rely on the decision in the case of ESS.GEE Real Estate Developers Pvt Lt....
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....ing titled "Nano turns Sanand land into gold" published in 'Times of India' on 23.07.2010 to impress that the land which two years ago was barely of Rs.20 Lakhs, had appreciated to Rs.5 Crs. He states that the land right which appellant purchased for a small sum had appreciated considerably and therefore, they transferred their rights in favour of a new buyer against consideration but the same being related to land, is not a service as per Section 65B (44) of the Finance Act, 1994. For commission on agricultural produce exported by M/s. S Raja Export Pvt. Ltd. he states that the appellant is eligible to the benefit of Notification No.13/2003-ST dated 20.06.2003. He also states that there was no intent to evade payment of service tax and so extended period is not invokable. On the same grounds, he questioned imposition of penalty on the appellant and prayed for setting aside the impugned order and allowing their appeals. 4. Learned AR on the other hand reiterates findings of the lower authorities and states that for year 2010-11, the appellant had shown income of Rs.14.72 Crs. in their trial balance sheet but shown sale of Rs.10.62 Crs., in their sales ledger. The differential am....
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..... 5) That the second part (seller) shall pay the government/semi government, taxes, all kind of charges, education cess, taxes of gram panchayat and outgoing and dues of any in respect of said property till the date of registered sale deed. 6) That the purchaser shall bear the entire expenses of this agreement as well as registered sale deed etc like stamp duty, registration fees, typing charges, advocate's expenses fees and all incidental 7) That the seller indemnifies that they will handover all the original documents and papers regarding the titles and ownership of the said property at the time of executing the registered sale deed. 5.2 In terms of above banakhat, the appellant claims his right on the said land which he subsequently transferred in favour of Sri Sri Ravishankar Vidyamandir Trust for a consideration of Rs.252.53 Lakhs and in accordance with that, sale deed was registered on 01.08.2012 between Sri Sri Ravishankar Vidyamandir Trust and Mr. Navnitlal Jagjivandas Shah. We have also gone through the decisions cited by learned Advocate on transfer of rights in land which is recognised in relation to immovable property and therefore, the....
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...., copy of one such letter is reproduced below:- These documents were not found sufficient by the lower authorities to support their claim in absence of any agreement between them and M/s. S Raja Exports Pvt. Ltd. We find that the Commissioner (Appeal) has elaborately discussed this point in para 8 of his order while denying benefit of exemption under Notification No.13/2003-ST dated 20.06.2003 to them. We further find that while arguing their case before this bench, the appellant could not produce any other documents in support of receipt of commission from sale of Indian raw cotton except above debit letter dated 31.03.2011 intimating M/s. S Raja Exports Pvt. Ltd. about debiting of account. What appears to us is that these are one sided debit letters one dated 31.03.2011 for a sum of Rs.71,75,382/- and the other one dated 31.03.2012 showing debit of sum of Rs.90,56,280/- for sale of Indian Raw Cotton during the period 2010-11 and 2011-12 respectively without any confirmation/ approval from the other end. The documents produced by the appellant do not support their case and therefore, we are not convinced with the reasoning advanced by the learned Advocate. We accordingly uphold....