TaxTMI 
TaxTMI 
2024 (12) TMI 1778
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..... The brief facts are M/s. Ravi Teja Constructions, the Appellant had entered into an agreement with Telecom Society (TECHSL), which is formed with an objective of carving of housing needs of the employees working under the Ministry of Communication. The agreement was for acquiring the land and subsequent development/formation of residential layouts. Alleging that the activity carried out by the Appellant amounts to 'Real estate agent/Real estate consultant' service and 'site formation and clearance, excavation and earthmoving and demolition' service, liable to pay service tax for the period from 2009-2010 up to 01.07.2012 and under 'Service' as per Section 65B(44) read with Section 65B(51) of the Finance Act, 1994 for period effective from 01.07.2012 to March 2014 in terms of Section 67 and 68 of the Finance Act, 1994, proceedings were initiated, and a Show Cause Notice was issued. Thereafter Adjudication authority as per the impugned order dated 27.08.2015 confirmed the demand of duty with applicable interest and also imposed penalties under the provisions of the Finance Act, 1994. Aggrieved by impugned order, present appeal is filed before the Tribunal. ....
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.... attention to Clause 14 of the agreement and as per said clause, after identifying the land, Appellant is obliged to develop the residential layout with the following facilities. a. Front Arch with Security Enclosure. b. Laying and asphalting of roads, according to the planning authorities norms. c. Tree Plantation. d. Box type drainage, Culverts covered with RCC slabs, etc. e. Footpath with inter-lock tiles. f. Underground Sanitary network with provision of Sewage treatment plant to ensure proper out flow of sewerage. g. Water supply network, which includes provision for sufficient numbers of bore-wells, construction of over head tank (1.5 Lakhs liters capacity), Underground Sump pumping and supplying of water through underground water lines [Two Water lines for individual sites, one for Drinking (Potable water) and other for Washing/Plantation (non-potable)] for the entire layout. h. Electricity with Street Lighting which includes laying of electrical poles, drawing of electrical lines, providing of streetlights, erection of sufficient numbers of transformers, servicing of electricity by KEB authorities for t....
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....ch as laying of cables under the road." 7. The Learned Counsel also submits that Hon'ble Apex Court in the case of Commissioner of C.Ex. & Cus., Kerala Vs. Larsen & Toubro Ltd .- 2015(39) STR 913 (SC), while deliberating on the issue of indivisibility of Works Contract, distinguished between `Contracts Simpliciter' and 'Composite Works Contracts' as follows :- "24. A close look at the Finance Act, 1994 would show that the five taxable services referred to in the charging Section 65 (105) would refer only to service contracts simpliciter and not to composite works contracts. This is clear from the very language of Section 65(105) which defines "taxable service" as "any service provided". All the services referred to in the said sub-clauses are service contracts simpliciter without any other element in them, such as for example, a service contract which is a commissioning and installation, or erection, commissioning and installation contract. Further, under Section 67, as has been pointed out above, the value of a taxable service is the gross amount charged by the service provider for such service rendered by him. This would unmistakably show that what is ....
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....xability of a bundled service shall be determined in the following manner, namely: (a) if various elements of such service are naturally bundled in the ordinary course of business, it shall be treated as provision of the single service which gives such bundle its essential character; (b) if various elements of such service are not naturally bundled in the ordinary course of business, it shall be treated as provision of the single service which results in highest liability of service tax. Explanation: For the purposes of sub-section (3), the expression "bundled service" means a bundle of provision of various services wherein an element of provision of one service is combined with an element or elements of provision of any other service or services." 11. Learned Counsel also submits that even if it is held that the appellant is liable to pay service tax under bundled service, it can be only under 'works contract' service. Learned counsel also relied on the following judgments/decisions in support of above submissions: - a. Commissioner Vs. Larsen & Toubro Ltd., 2015(39) STR 913 (SC) b. Suresh Kumar Bansal Vs. UOI., 2016(43) STR ....
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....rvice, residential complex construction service and works contract service, real estate agent services, site formation services, etc., was a subject matter of extensive debate, dispute, litigation, contrasting decisions, controversies rife with retrospective amendments thrown in, with provisos, explanations, insertions in definitions making the construction industry most vulnerable to tax uncertainties. It is further submitted that the Appellant carried a bona fide belief that the transaction in the instant case is outside the purview of levy of Service tax and accordingly they have neither registered themselves under the Service tax law nor collected any Service tax from TECHSL. Therefore, the Appellants cannot be charged with willful misstatement or suppression of facts with intent to evade tax, for invoking extended period of limitation in this case. This aspect, if considered in the right perspective would lead to the indubitable conclusion that in such situations the taxpayer cannot be put to blame for flaws in law and for lacunae created by the framers of law. The impugned order does exactly the very opposite and hence is manifestly illegal and merits annulment. In this conte....
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....for its registration and payment of service tax under 'real estate agent' service. The Learned AR further submits that though the appellant is claiming the activity as falling under the 'works contract', has not obtained registration even under the said category to claim immunity from penalty. Thus, Adjudication Authority rightly confirmed demand as per the impugned order. The Learned AR relied on the following decisions. 1. Commissioner of C.Ex. Visakhapatnam Vs. Mehta & Co. - 2011 (264) ELT 4871 (SC) 2. NKG Infrastructure Ltd. Vs. Union of India - 2017 (346) ELT 109 (All.) 3. Chhattisgarh Steel Castings (P) Ltd Vs. Union of India - 2020 (34) GSTL 70 (Chhattisgarh) 4. Chhattisgarh steel castings (P) Ltd. Vs. CCE & ST - Raipur - 2019 (1) TMI 911 - CESTAT NEW DELHI. 5. Union of India Vs. Dharamendra Textile Processors. - 2008 (231) ELT 3 (SC) 15. In rejoinder, Learned Counsel for the appellant submits that even if it is held that the appellant is liable to pay service tax under 'real estate service', Learned counsel draws our attention to the worksheet-1 showing service tax payable under real estate service incl....
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....or vivisected into :- i) procuring land; ii) development of the land as per the requirement of Telecom society. 18. As regards demand under 'Real Estate Agent' Service, Real Estate Agent as per section 65(88) means any person who is engaged in rendering any service in relation to sale, purchase, leasing or renting of real estate and includes a real estate consultant, read with Section 65(105) (v) of Finance Act, 1994, wherein 'taxable service' means any service provided or to be provided to any person, by a 'real estate agent' in relation to 'real estate', up to the period 30.06.2012, and it is a 'Service' under Section 65B(44) read with Section 65B(51) of the Finance Act, 1994 for period effective from 01.07.2012. As per the agreement executed on 19.04.2006, the appellant agreed to assist the Telecom society to procure the land and out of cost of entire project @ Rs. 421 per Sq.ft, the purchaser shall pay @ Rs. 200 per Sq.ft. of actual sital area of the above amount towards cost of land at the time of execution of sale deed for the converted land. Thereafter as per the supplementary memorandum dated 14.04.2014, it is agr....
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....ls and duly recorded in the books of account maintained by the appellant. Appellant had carried a bona fide belief that the transaction in the instant case is outside the purview of levy of Service tax and accordingly they have neither registered themselves under the Service tax law nor collected any Service tax from Telecom Society. Further there is no suppression of information from the Revenue. The issue regarding invoking the extended period of limitation is well settled as per the judgment of the Hon'ble Supreme Court in the matter of Continental Foundation Jt. Venture Vs. Commr. of C. Ex., Chandigarh-I reported in 2007 (216) E.L.T. 177 (S.C.) wherein it is held that as far as fraud and collusion are concerned, it is evident that the intent to evade duty is built into these very words. So far as mis- statement or suppression of facts are concerned, they are clearly qualified by the word 'wilful', preceding the words "mis-statement or suppression of facts" which means with intent to evade duty. The next set of words 'contravention of any of the provisions of this Act or Rules' are again qualified by the immediately following words 'with intent to evade p....