TaxTMI 
TaxTMI 
2026 (7) TMI 12
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....and circumstances of the present case. • In relied case, Nilesh Patel was providing services relating to acquisition and development of real estate to M/s. Sahara India and separate MOUs were executed with Sahara group in connection with the acquisition of land in different cities/ locations. • As per these MOUs, Nilesh Patel was to identify land, negotiate with the land owner, examine the title paper, confirm the title with the land records and thereafter, facilitate transfer of land in favour of Sahara India. He was also to obtain necessary approval/ permission if required, from the appropriate authority for the transfer of land. In this case, land/ real estate acquired was never transferred in the name of the Nilesh Patel and thus, Nilesh Patel was in the shoes of an agent/ consultant. • In the present case, M/s. Rajni Builders Pvt. Ltd. have not really been purchasing and selling immovable properties in their own independent right and were only holding 'an agreement of sale' with the property owners and in that capacity, offering the said property to the ultimate buyers for sale. The sale consideration was given to the land owner and the d....
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....so argued that in the case of M/s. Gateway Terminals India Pvt. Ltd. reported at 2020 (11) TMI 541- CESTAT Mumbai, it was held that even if, some case law relied upon in the order may be distinguishable/ incorrect, still the order is not amenable to ROM proceedings at all. Since, revenue may at the most appeal against the same. Learned Advocate further cited the decision of CESTAT in the case of GACL vide its Miscellaneous Order No. 10795/2025 dated 16.12.2025 wherein, it was held that, "we have considered the rival submissions. We find force in the factual position stated by the Advocate, as there was a clear-cut submission made that the credit has been reversed which is not opposed on record by the department and therefore, has become a submission on record, which cannot be subjected to rectification simply because of a pleading being made that the same should have also been verified. Even at this stage, no evidence has been produced by the department that credit was not reversed. Non controverted fact therefore becomes part of record and decision based on it cannot accepted to be suffering from vice of these mistakes. Order is sustainable." 3.2 Learned Advocate also relied on....
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....roperty, by way of sale, gift or in any other manner; or (ii) such transfer, delivery or supply of any goods which is deemed to be a sale within the meaning of clause (29A) of article 366 of the Constitution; or (iii) a transaction in money or actionable claim; From the above, it is clear that an activity which constitutes merely a transfer of title in goods or immovable property by way of sale, gift or in any other manner is not covered within the definition of "Service". The consideration amount received by M/s. Rajni Builders was not out of any service activity but was in relation to transfer of title in immovable property. Therefore, on merits also, we find that the activity undertaken by M/s. Rajni Builders is not covered within the definition of "Service" and hence, not leviable to any service tax. 4.2 We find that Hon'ble Gujarat High Court in the case of Rama Nagappa Shetty Vs. Commissioner of Customs, reported at 2020 (374) ELT 683 (Guj.) has considered the scope of rectification of mistake. It held that re-appreciation of evidence on a debatable point cannot be said to be rectification of mistake apparent on record. Mistake apparent on record must ....
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....cted companies. Different conclusions were arrived at by the CESTAT because it reappreciated the evidence in relation to common directors among the companies and inter se holding of shares by the companies. Re-appreciation of evidence on a debatable point cannot be said to be rectification of mistake apparent on record. 17. Similarly, in pursuance of the rectifying application, the CESTAT came to the conclusion that an officer of the department, who was working as Assistant Director (Cost) and who was also a Member of an Institute of Cost and Works Accountants was not competent as a Cost Accountant to ascertain value of the goods. It is strange as to why the CESTAT came to the conclusion that it was necessary that the person appointed as a Cost Accountant should be in practice. We do not see any reason as to how the CESTAT came to the conclusion that the Cost Accountant, whose services were availed by the department should not have been engaged because he was an employee of the department and he was not in practice. The aforestated facts clearly show that the CESTAT took a different view in pursuance of the rectification application. The submissions which were made before ....