9911796707
TMI Blog2017 (9) TMI 1071X X X X Extracts X X X X X X X X Extracts X X X X ..... he changes made in the records of the respondent are not causative factors for such sale or purchase - no service tax liability can be confirmed against the respondent under this category. Maintenance or repair service - Held that: - Advice or consultancy rendered by the appellant is not covered by maintenance or repair of immovable property. Admittedly the appellants are not involved in any activity of management, maintenance or repair. Maintenance charges attributable to the money collected from the owners of plot/flat/office for maintenance of the said properties - Held that: - the entire building which was maintained and managed by the appellant/assessee for a consideration is for the collective benefit of the owners of the individual units in the building. Each owner is collectively and severely got the benefit of said maintenance - the consideration paid by the owners of flat/plot/office is liable to service tax - demand upheld. Time limitation - Held that: - the appellant/assessee is a well organized large scale real estate developer. As such, it is not tenable for them to submit that they were not fully aware of the legal implications of various service tax entries applicab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Authority, as mentioned above. 3. The learned AR elaborating the grounds of appeal submitted on the following points :- (a) The Commissioner has erred in holding that services provided by the assessee in relation to transfer of knowhow does not fall under the definition of management consultant service and hence not chargeable to service tax. Clauses 1.1 to 1.6 of the agreement entered into by the respondent with their client clearly bring out that the respondent has valuable knowledge, expertise and experience in the field of development relating to real estate projects. Relying on the decision of the Tribunal in RPG Enterprises - 2008 (11) S.T.R. 488 (Tri. - Mum.) it is contended that the management consultant services will cover any advice rendered by one organization/person to another organization for improving the organization by conceptualizing, devising, development upgradation of recipient organization. The agreement indicates that the respondent provided useful consultancy services to their clients; (b) when the respondent collected certain charges for changing the names of the owners of the flats by substitution in the records, the same should be covered under taxabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in real estate project. The terms of agreement, also relied on by the Revenue in the present appeal, clearly brings out that the respondent are transferring know-how one time and furnished documents relating to real estate development projects, including group housing projects. The know-how is suitable and complete, which will enable the client to plan and execute the real estate development projects, including group housing projects, in a more profitable and efficient method. On careful consideration of the scope of the agreement, we note that there is no consultancy service with reference to improvement of organizational efficiency of the client. The Revenue contends that even a transfer of technical know-how which improves the profitability and efficiency of the client organization will also be covered under the general category of management consultancy. We are unable to agree with such proposal. As rightly pointed out by the Original Authority the know-how was transferred in the shape of data, information, drawings, design specifications of materials and utilities etc. It is thus, an undisputed fact that the know-how, was transferred by the respondent to their clients. In p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relation to evaluation, conception, design, development, construction, implementation, supervision, maintenance, marketing, acquisition or management, of real estate; Section 65 (105) (v) defines taxable service in relation to 'Real Estate Agent' as under : "taxable service" service means any service provided or to be provided to any person, by a real estate agent in relation to real estate and the term 'service provider' shall be construed accordingly". 10. The Revenue contended that the respondent received certain considerations for change of name of the owners of the flats, by way of substitution of the name by new buyer in place of earlier owner of the flat, was in relation to sale or purchase of such property and accordingly liable to service tax. To levy service tax first of all the provider of service should be a real estate agent and second while acting as such agent the person concerned should have provided service in relation to sale, purchase, leasing or renting of real estate. There is nothing in the show cause notice or the relied upon documents to show that the respondent acted in a capacity of "real estate agent" between the earlier owner and the new buyer of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he owners of plot/flat/office for maintenance of the said properties. The appellant/assessee contested their tax liability in the cross objection. We note that the entire building which was maintained and managed by the appellant/assessee for a consideration is for the collective benefit of the owners of the individual units in the building. Each owner is collectively and severely got the benefit of said maintenance and as such we are in agreement with the Original Authority that the consideration paid by the owners of flat/plot/office is liable to service tax as affirmed by the Original Authority. We find no merit in the objection raised by the appellant/assessee in their Cross Objection. 13. Regarding the limitation, we have examined the findings recorded in the impugned order. The Original Authority held that in the present case, the appellant/assessee failed to make out a case on bonafide belief for non-payment of service tax. It was also recorded that in one of the cases the appellant/assessee admitted their liability to pay tax to contended that they had sufficient balance in Cenvat credit and as such no demand can be enforced against them. We note that the appellant/assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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