TaxTMI 
TaxTMI 
2026 (7) TMI 1847
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....t of common Order-In-Appeal (OIA) bearing no. 22-26/ 2022-23 dated 17.06.2022 and all the five appellants being the co-noticees of the Show Cause Notice bearing no. 43/2017 dated 17.11.2017. 2. Briefly stated, the facts relevant for the adjudication of both these appeals are as follows: 2.1 M/s Dynamic Infra Developers Private Limited, the appellant here in, has been registered with the service tax department for providing "Construction of Residential Complex Service". The department got an information about evasion of service tax by the appellants. Based there upon search was conducted on 20.10.2016 at the premises of the appellant's company under Panchnama of the even date. Statement of supervisor of civil works of Dynamic Infra Dev....
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.... service tax liability on the Advance receipts and development charges has been calculated as follows: Year Value of Development charges of land Advance for Flats Taxable value for flats @30% of column (3) Total taxable (Flat+development charges for land )col. (2)+(4)+(5) Service tax rate @12.336% Service tax payable (1) (2) (3) (4) (6) (7) (8) 2012- 13 6,89,437 2,57,18,806 7715642 84,05,079 12.36 10,38,868 2013- 14 1,53,79,613 2,38,10,806 7143242 2,25,22,855 12.36 27,83,825 Total 1,60,69,050 49529612 1,48,58,884 3,09,27,934 27,83,825 2.3 The aforesaid amount of Rs.27,69,889/- was proposed to be recovered from appellant company....
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....However, during the said period, sale of flats was not covered under the ambit of service tax. Ld. Counsel further submitted that they closed the scheme for sale of flats before coming into existence the tax liability thereof, and instead, they launched scheme for sale of fully developed plots. Hence when sale of flats became liable to service tax in the year 2012, the appellants were selling, developed plots without collecting or depositing any service tax on the same. 4.1 It is further submitted that whatever amounts were received by the appellant for sale of flats, the same were either refunded to the customers or got transferred towards sale of plots. At no point of time, the appellant ever sold any flat.The department has wrongly de....
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....Act, 1994, it was provided that service tax would be levied at the rate of fourteen percent on the value of services only. It shows that service tax was chargeable only on services, not on goods. Term 'service' is defined under Section 65B(44) of the Finance Act, 1994 as: - "(44) "service" means any activity carried out by a person for another for consideration, and includes a declared service, but shall not include- (a) An activity which constitutes merely,- (i) A transfer of title in goods or immovable property, 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 Constitu....
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....dvances received by the appellants for the amount of Rs. 2,57,18,806/- and Rs. 2,38,10,806/- for the financial year 2012-13 and 2013-14 respectively can not be called as the amount of consideration received for rendering "Service" but are held to be the amounts received by the appellants towards sale of developed plots. 6.3 Though the adjudicating authority below / Commissioner (Appeals) has observed that the demand has been raised only on the part of the amount received from the customers on account of development charges, hence taxability of the service involved has been correctly assessed by the department. However, as already observed above, it is an admitted fact that the appellants had developed the plots prior selling them. Depart....
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.... intent or suppression, is not sufficient to attract the extended limitation period... ... 9.4 Therefore, in the absence of fraud, collusion, willful misstatement, or suppression of facts with an intent to evade payment of service tax, the invocation of the extended period of limitation under section 73 of the Finance Act, 1994 is wholly unwarranted. Mere non-payment of service tax, by itself, does not justify the invocation of the extended limitation period. Accordingly, the show cause notice issued by the Department is clearly time-barred. On this ground alone, the impugned order deserves to be set aside." The said decision has been followed by Hon'ble Supreme Court in another decision in the case of Commissioner of S....