9911796707
TMI Blog2015 (2) TMI 706X X X X Extracts X X X X X X X X Extracts X X X X ..... x under the head service tax. Similarly other factors taken note of in paragraph 3 of circular need to be looked into by the assessing authority. Advocate Shri Mirza submitted that this circular issued in 2009 cannot be corelated with facts looked into the impugned order. We find that the circular only recognizes legal position and does not lay down any new law. It explains and interprets an existing provision. The contention that it cannot operate retrospectively is erroneous. It is interpretation of legal position and it can always be applied to the facts and events at hand. The impugned order does not show any consideration of any sale deed executed by petitioner in favour of its customers or clients. There is no application of min ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after the affairs had undergone a byepass surgery. The demand in terms of said assessment was made for the first time on 24-8-2012 and then petition has been filed. Our attention has been drawn to the provisions of Section 85 to urge that appeal needed to be filed within three months and appellate authority can condone delay upto further three months. Thus, it has no powers to condone delay in excess of three months. Judgment of Hon'ble Apex Court in the case of Commissioner of Customs and Central Excise Vs. Hongo India Pvt. Ltd. and anr. reported in (2009) 5 SCC 791 is relied upon to show absence of jurisdiction. 4. Learned Advocate Shri Mirza appearing for respondents pointed out that circulars which clarified the position have com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Board. Generally, the initial agreement between the promoters/builders/developers and the ultimate owner is in the nature of 'agreement to sell'. Such a case, as per the provisions of the Transfer of Property Act, does not by itself create any interest in or charge on such property. The property remains under the ownership of the seller (in the instant case, the promoters/builders/developers). It is only after the completion of the construction and full payment of the agreed sum that a sale deed is executed and only then the ownership of the property gets transferred to the ultimate owner. Therefore, any service provided by such seller in connection with the construction of residential complex till the execution of such sale dee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted that this circular issued in 2009 cannot be corelated with facts looked into the impugned order. We find that the circular only recognizes legal position and does not lay down any new law. It explains and interprets an existing provision. The contention that it cannot operate retrospectively is erroneous. It is interpretation of legal position and it can always be applied to the facts and events at hand. 10. The impugned order does not show any consideration of any sale deed executed by petitioner in favour of its customers or clients. There is no application of mind as required in paragraph no. 3 of CBEC circular (supra). As such, it can be seen that said order of assessment is incomplete. 11. Petitioner had also not taken any ..... X X X X Extracts X X X X X X X X Extracts X X X X
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