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2023 (6) TMI 461 - AT - Service TaxLevy of Service Tax - administrative charges - According to the appellant it is not required to pay any service tax under the category of real estate agent service, while according to the Department the appellant rendered real estate agent service - HELD THAT - In the present case, the appellant has merely charged administrative charges/ transfer charges for incorporating in its record the name of the new buyer consequent upon any sale of the property by the earlier buyer. The appellant is not involved in any sale or purchase of real estate per se nor is the appellant involved in introducing the prospective buyer to any seller. The sale-purchase transaction takes place between two independent parties without the involvement of the appellant. In this connection it would be useful to refer to the decision of the Tribunal in M/S BESTECH INDIA PRIVATE LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE NEW DELHI. 2019 (3) TMI 867 - CESTAT NEW DELHI wherein the appellant, a real estate developer, had received administrative charges for change in name of the ownership in its records. After referring to the definition of real estate agent , real estate consultant and taxability of any service provided by a real estate agent in relation to a real estate, the Tribunal referred to the earlier decision of the Tribunal in CST, NEW DELHI VERSUS M/S ANSAL PROPERTIES AND INFRASTRUCTURES LTD. 2017 (9) TMI 1071 - CESTAT NEW DELHI wherein the decision of the Tribunal rendered in the appellant s own case M/S. AJAY ENTERPRISES PVT. LTD. VERSUS C.S.T., DELHI 2016 (1) TMI 848 - CESTAT NEW DELHI was distinguished and reliance was placed on the decision of the Tribunal in Ansal Properties and Infrastructure. Since the decision rendered in the own case of the appellant has been considered and distinguished by subsequent Benches of the Tribunal and it has been held that real estate agent service is not provided in such circumstances it has to be held that the appellant has not rendered real estate agent service. It is, therefore, not possible to sustain the order passed by the Commissioner. The order passed by the Commissioner is, accordingly, set aside and the appeal is allowed.
Issues involved:
The appeal challenges the order confirming the demand of service tax for the period 2004-05 to 2007-08, 01.04.2008 to 30.09.2008, and 01.04.2012 to 31.05.2012 under the category of 'real estate agent' as defined under the Finance Act, 1994. Details of the Judgment: 1. The appellant, engaged in construction and development of real estate projects, charges 'administrative' expenses when a buyer transfers ownership to another person. The appellant argues that these charges are for correcting records and not for 'real estate agent' services. 2. The dispute centers on the 'administrative charges' collected by the appellant. The Department contends that the appellant provided real estate agent services, relying on a previous Tribunal decision in the appellant's case. 3. The appellant argues that subsequent Tribunal decisions have distinguished the earlier decision, indicating that the demand should be set aside as the appellant did not provide real estate agent services. 4. The Tribunal notes that the earlier decision has been distinguished by various Benches, supporting the appellant's position that no real estate agent service was provided. 5. The appellant merely charged administrative/transfer charges for updating ownership details in its records, not involved in direct sale or purchase of real estate. The Tribunal refers to a similar case where such charges were not taxed as 'Real Estate Agent Service.' 6. The Tribunal concludes that the appellant did not provide real estate agent services, as confirmed by the subsequent decisions of the Tribunal. The Commissioner's order confirming the demand is set aside, and the appeal is allowed.
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