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TMI Blog2015 (4) TMI 464X X X X Extracts X X X X X X X X Extracts X X X X ..... self, i.e. as to whether the extended period of limitation would apply, is yet to be determined by the adjudicating authority itself at the first instance. Consequently, without expressing any finding on the issues raised in course of the argument, we dismiss the writ application but allow the petitioner a further period of 30 days to file show cause reply and also to participate in such proceeding. The petitioner is at liberty to raise all such contentions and the Commissioner shall deal with the matter strictly in accordance with law without in any manner being influenced by any observation made hereinabove and reach in an independent conclusion both on fact and legal issues raised. - Decided in favour of assessee. - W.P.(C). No. 23548 of 2014 - - - Dated:- 23-2-2015 - Indrajit Mahanty And B. K. Nayak,JJ. For the Petitioner : M/s. Gautam Mukherji, G. M. Rath, S. S. Padhy, S. Mishra S. Satapathy For the Respondent : Mr. P. K. Ray (Sr. Standing Counsel) JUDGMENT I. Mahanty, J. In the present writ application, challenge has been made to the demand-cum-show cause notice dated 22.9.2014 under Annexure- 13 on the basis of the assertion that the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Senior Standing Counsel appearing for the Service Tax Department, on the other hand, placed reliance on Para-3 of the demand-cum-show cause notice and the reply made by the Finance Officer of B.D.A. to the queries raised by the Service Tax Authority as well as the discussion made in Para-4 and Suppression of facts in Para-6 thereof which is quoted hereinbelow: 4. DISCUSSION 4.1 From the Lease Deed dated 30.09.2010, it is noticed that the title of the Deed has been mentioned as LEASE OF LAND FOR DEVELOPMENT OF COMMERCIAL USE ZONE PURPOSE IN NEW CAPITAL AREA AT BHUBANESWAR . The said agreement has been registered with the District Sub-Registrar, Khurda. Hence the agreement is nothing but a valid legal Lease Deed. In the text of the agreement, the following has been clearly spelt out under Para-B of the agreement. To quote the company in turn is entitled to construct and develop and transfer their lease hold right for the specified and demarcated portion of the construction (herein after referred to as Developed Units ) raised on the demised Land to sublessees ., to unquote. 4.2 It also appears from the agreement dated 30.09.2010 that M/s. Unitech Ltd had leas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Unitech Ltd. for construction of commercial complex. The lease agreement has been entered into during the month of September, 2010, when the leasing of vacant land had already become taxable under Finance Act, 1994 as amended. Hence, as per Finance Act, 1994, Renting of Immovable Property Service includes leasing of vacant land which is the subject matter of the present lease agreement between BDA and M/s. Unitech Ltd. Moreover, purpose of the said lease of land is development, construction of buildings and structures for the activities permissible in commercial use zone which are very much commercial in nature. Further, BDA is neither a religious body nor an educational institution and no exclusion as envisaged in erstwhile Section 65(90a) of the Act, is applicable to BDA. 4.7 Further, it has been rendered vide Notification No.36/2010-ST dated 26-6-2010 that Service Tax on advances in case of services other than Commercial Training or Coaching Service and Renting of Immovable Property Service received prior to 01.07.2010, is exempted. In the instant case, BDA has received the consideration in advance in the yar 2008 and agreement is entered into during September, 2010. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Service Tax has come to the light during the course of investigation by the DGCEI officers. It also appears that BDA has suppressed the fact of provision of Renting of Immovable Property Service , Commercial or Industrial Construction Service , Security Service and Advertisement Service to M/s. Unitech Ltd. and has not paid any Service Tax on the service charges received from M/s. Unitech Ltd. They neither declared the above details in their statutory ST-3 Returns for the period 2010-11, nor did they intimate anything to the Department. Their acts or omissions of non-payment of Service Tax on gross amount collected from M/s. Unitech Ltd. for rendering Renting of Immovable Property Service , Commercial or Industrial Construction Service , Security Service and Advertisement Service is indicative of willful suppression of material facts with intent to evade payment of Service Tax. Hence, the extended period of limitation under the proviso to section 73(1) of the Act, appears invocable for recovery of the above mentioned Service Tax not paid by BDA. 4. Learned Senior Standing Counsel for the Service Tax Department placed reliance on the judgment of Hon ble Supreme C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se, is required before it is saddled with any liability, before the period of six months. But most importantly, the Hon ble Supreme Court has noted thereafter that Whether in a particular set of facts and circumstances there was any fraud or collusion or willful misstatement or suppression or contravention of any provision of any Act, is a question of fact depending upon the facts and circumstances of a particular case. 7. On perusal of the aforesaid judgment of the Hon ble Supreme Court, it is clear therefrom that Hon ble Supreme Court in the said case was dealing with an appeal filed by the Collector of Central Excise, Hyderabad against an order passed by the Tribunal. In the facts and circumstances of the said case, Hon ble Supreme Court came to hold that this finding of fact having been ultimately held against the revenue by the Tribunal which is the final fact forum and dismissed the appeal filed by the revenue on the basis that it did not want to interfere the facts determined by the Tribunal in the said case. 8. In the present set of circumstances of the case, any finding by the Court at this stage is likely to be prejudicial, either the petitioner-BDA or the Service ..... X X X X Extracts X X X X X X X X Extracts X X X X
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