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TMI Blog2015 (11) TMI 1046X X X X Extracts X X X X X X X X Extracts X X X X ..... bringing to our notice that the issue is now settled by this bench in Kumar Beheray Rathi (2013 (12) TMI 269 - CESTAT MUMBAI) - service tax liability as confirmed against the appellant under Management, Maintenance or Repair services is unsustainable. As regards the point raised by the ld. AR, that amount collected for maintenance of Garden, roads and club house facilities are for the members of the society as and when formed; secondly the entire premises is transferred to society of members, on execution of conveyance deed. The impugned order to that extent is set aside - Decided in favour of assessee. - Appeal No.ST/540/11- Mum & Appeal No.ST/647/11- Mum - - - Dated:- 15-9-2015 - Mr. M.V. Ravindran, Member (Judicial) And Mr. C.J. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f taxability of Management, Maintenance or Repair services was decided by this bench in the case of Kumar Beheray Rathi 2013-TIOL-1806-CESTAT-MUM and submits that this view was followed by the bench again in Goel Nitron Constructions 2015-TIOL-1787-CESTAT-MUM he produces a copy of the said judgment. As regards the service tax liability under the Goods Transport Agency service, he submits that they are not contesting the issue and they have already paid the entire amount along with interest before the issuance of show-cause notice. He would submit that penalties imposed on this count be set aside. 7. Ld. Departmental Representative submits that the appellant had collected an additional amount from the owners towards Management, Maintenanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice. As regards the penalties imposed in the issue of Goods Transport Agency we find that the issue being agitated before the higher judicial forum there is no need to visit the appellant with the penalty. Invoking the provisions of section 80 of the Finance Act, 1994 we set aside the penalties imposed by the lower authorities. 10. As regards the Management, Maintenance or Repair services, we find that it is undisputed that the said amounts are collected by the appellant as a builder for the common maintenance of building as well as the entire premises of the apartment. We find that it is undisputed that the amounts which are collected are used for Management, Maintenance of the common facilities. Ld. CA was correct in bringing to our no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uction, sale, management and transfer) Act, 1963. We find that the Section 5 and 6 provides as under:- SECTION 05: PROMOTER TO MAINTAIN SEPARATE ACCOUNT OF SUMS TAKEN AS ADVANCE OR DEPOSIT AND TO BE TRUSTEE THEREFOR; AND DISBURSE THEM FOR PURPOSES FOR WHICH GIVEN The promoter shall maintain a separate account in any bank of sums taken, by him, from persons intending to take or who have taken flats, as advance or deposit including any sums so taken towards the share capital for the formation of co-operative society or a company, or towards the outgoings (including ground rent, if any, municipal or other local taxes, taxes on income, water charges, electricity charges, revenue assessment, interest on any mortgage or other encumbranc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same amount towards the outgoings. Further section 6 puts responsibility for payment of outgoings on the appellants till the property is transferred. 6.3 We also note that at the relevant time the provisions of Finance Act are as under:- Maintenance or repair means any service provided by (a) Any person under a contract or an agreement; or (b) A manufacturer or any person authorized by him in relation to (i) Maintenance or repair including reconditioning or restoration, or servicing of any goods or equipment, excluding motor vehicle; or (ii) Maintenance or management of immovable property. 6.4 We also note that the appellants are not in the business of maintenance or repair service or management of im ..... X X X X Extracts X X X X X X X X Extracts X X X X
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