2020 (2) TMI 1071 - HC - Service Tax

Maintainability of appeal - appropriate forum - Classification of services - real estate agent services or not - Sahara was to acquire the land, including the cost and development expenses - case of appellant is that Tribunal erred in not treating the respondent as providing real estate agent service, and in treating the transaction, between the respondent and Sahara, as one of trading - HELD THAT - Appeals to the High Court, against orders passed by the learned Tribunal, in matters relating to service tax, lie under Section 83 of the Finance Act which, in turn, refers to Section 35G and 35L of the Central Excise Act, 1944. It stands authoritatively held by this Court, in catena of pronouncements, including COMMISSIONER OF SERVICE TAX VERSUS GECAS SERVICES INDIA PVT. LTD. 2015 (9) TMI 889 - DELHI HIGH COURT , COMMISSIONER OF SERVICE TAX, NEW DELHI VERSUS MENON ASSOCIATES 2014 (11) TMI 970 - DELHI HIGH COURT , COMMISSIONER OF SERVICE TAX VERSUS AMADEUS INDIA PVT LIMITED AND OTHERS 2015 (9) TMI 888 - DELHI HIGH COURT and COMMISSIONER OF SERVICE TAX, DELHI VERSUS TRANSCORP INTERNATIONAL LTD. 2014 (11) TMI 932 - DELHI HIGH COURT , relying on Section 83 of the Finance Act read with Sections 35G and 35L(2) of the Central Excise Act, 1944, that, where the lis pertains to chargeability of the activity, conducted by the assessee, to service tax, no appeal would be maintainable before this Court, and that the appeal would lie, instead, to the Supreme Court. This position, it has been noted in the said decisions, also stands clarified by Circular No. 334/15/2014-TRU, dated 10th July, 2014 of the Central Board of Excise and Customs. The present appeal is, clearly, not maintainable before this Court - Appeal dismissed as not maintainable.

Summary

Issues:
Chargeability of service tax under the head "Real Estate Agent" service.

Analysis:
The judgment involves an appeal by the Principal Chief Commissioner, Goods and Service Tax, challenging a Final Order passed by the Customs, Excise & Service Tax Appellate Tribunal. The respondent, engaged in real estate business, entered into a Memorandum of Understanding with another entity for acquiring land. The Revenue contended that this arrangement made the respondent liable to pay service tax as a "Real Estate Agent". A Show Cause Notice was issued, and subsequent orders confirmed the demand for service tax, interest, and penalty. The Tribunal, in its Final Order, held that the respondent was essentially trading in land with the other entity, and the MOU did not specifically provide for remuneration for real estate services. The Tribunal concluded that the transaction did not involve the provision of taxable services. The appellant argued that the respondent should be considered a "real estate agent", not a trader in land.

The High Court noted that appeals related to service tax matters lie under specific sections of the Finance Act and the Central Excise Act, and no appeal is maintainable before the High Court in cases involving chargeability of service tax. Citing previous judgments, the Court emphasized that such appeals should be directed to the Supreme Court. The appellant's contention regarding chargeability of service tax under the "Real Estate Agent" service was deemed not maintainable before the High Court. Consequently, the appeal was dismissed without expressing any opinion on the merits of the Tribunal's Final Order. No costs were awarded in this regard.