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TMI Blog2016 (5) TMI 1051X X X X Extracts X X X X X X X X Extracts X X X X ..... d legal position, we find that it will be fit and proper to direct the appellant to make a pre-deposit ₹ 30,00,00,000/- (Rupees Thirty crores only) within a period of 8 weeks to consider the admission of appeal in terms of Section 35 F of the Central Excise Act, 1994 read with Section 83 of Finance Act, 1994. On payment of such pre-deposit within time, there shall be a stay of recovery of remaining dues as adjudicated by the original authority. - Waiver not granted, stay petition disposed of - Service Tax Stay Application No. 59787 of 2013, Service Tax Appeal No. 59109 of 2013 - Stay Order No. 50474/2016 - Dated:- 11-5-2016 - Ms. Archana Wadhwa, Member (Judicial) and Mr. B. Ravichandran, Member (Technical) Shri BL Narasimhan, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d such services to DDA. It was alleged that the consideration for the said services was paid in kind by DDA. Accordingly, the consideration was arrived at based on value of 2/3 rd share of total flats assigned to the applicant in terms of above agreement. The original authority after due process adjudicated the case resulting in confirmation of Service Tax and imposition of penalties as mentioned above. 4. The learned Counsel for the applicant submitted that the applicant is entitled for full waiver of pre-deposit both on merits as well as on time bar. He mainly contended on the following points : 1) The transaction between the appellant and the DDA had happened much before the introduction of ST levy with effect from 1.7.2010. In s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs Pvt. Ltd. Vs. CCE [2012 STR 114 (Tri-Del)] which was finally decided vide Final Order No. 51003/2016 dated 4.3.2016 and Tribunal s Misc. order No. 23375/2014 dated 2.12.14 in Sobha Developers Ltd. 5. Learned AR opposed the submissions made by the applicant. He submitted that the amendment by way of insertion of explanation in the taxable service of construction of complex has no relevance to the facts of the present case. The explanation deals with sales transaction and in the present case the DDA is handed over 1/3 rd of the total number of flats not be way of sales. Learned AR contended that the land is provided by DDA on which prescribed number of flats are built by the applicant, out of which 2/3 rd of the flats were permitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a builder/developer for construction of residential complex. We note that the applicant infact paid substantial amount for obtaining exclusive development rights from DDA. Regarding the tax liability the applicant placed reliance on the decision of Gujarat High Court in the case of Sujal Developers (Supra). The Hon ble High Court held that from the statutory provisions, circulars as well as clarification issued by the Board, it appears that for being chargeable to tax under section 165 105 (zzzh) of the Act, the persons concerned are to render services to the another person in relation to construction of complex. In joint development in the absence of there being any service provider and serive recipient in relation to the transaction in q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be proper to consider the receipt of amount on their share of project as a valuable consideration in return for the land ceded to the appellant for developing the project. On this issue also the arguments above mentioned by the Revenue has some force especially when examined in the context of Tribunal s decision in LCS City Makers Ptd. Ltd. Vs. CST, Chennai [2013 (30 STR 33 (Tri-Chennai)]. The Tribunal examined in detail the arguments that there is no relationship of service provider and service recipient between the developer and the land owner. The argument was base on submission that it is a relationship in a joint venture for profit, both the parties have joined together in the business of construction of complex and land owner brings i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The valuation adopted in the impugned order to confirm the tax liability is questionable both on facts on law. This has been fairly admitted by the learned AR also. The quantification of taxable value based on value of 2/3 rd of residential units allotted to the appellant is prima facie not convincing. Apart from the total base value taken for determining the tax liability, the original authority did not allow the abatement in value as available under notification No. 1/2006 dated 1.3.2006. The abatement was not allowed only on the ground that appellant has not come up with any evidence at any stage regarding fulfilment of two conditions mentioned therein. Without commenting on the merits of such observations, it can be stated that taxin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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