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TMI Blog2018 (9) TMI 259X X X X Extracts X X X X X X X X Extracts X X X X ..... e of name for flat owners by way of substitution new buyers name with the earlier flat owners is not chargeable to Service Tax. Management of construction of projects - Held that:- The appellants have been supervising the construction projects of M/s. Mckino & M/s. Axa Business Services - their role was to supervise the construction and if the contractor fails to meet the expectations of their principals to undertake the construction themselves therefore, it is not a mere advice ‘consultancy or technical assistance’ in respect of ‘management of real estate’ - no Service Tax can be demanded from the appellants on this count under the head ‘Real Estate Agent Service’ - demand set aside. The demands pertaining to the services are set aside along with interest and penalties - appeal allowed - decided in favor of appellant. - ST/126/2009-DB - Final Order No. 21313/2018 - Dated:- 5-9-2018 - HON'BLE SHRI S.S GARG, JUDICIAL MEMBER And HON'BLE SHRI P.ANJANI KUMAR, TECHNICAL MEMBER V. Raghuraman, Advocate For the Appellant Mr. Pakshirajan, AR For the Respondent ORDER Per : P. Anjani Kumar M/s. Prestige Estates Projects (P) Ltd. (the appellants) are real ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ii) CST Vs. M/s. Ansal Properties and Infrastructure Ltd. 2018 (8) GSTL 58 (Tri. Del.). 2.1 The learned counsel submitted that the construction service provided by the builder/developer was not liable to Service Tax in terms of Board s Circular No. 151/2/2012-ST dated 10.02.2012. Assignment and transfer fees, Assessment and bifurcation fees in respect of Khata transfer and Forfeiture of deposits are amounts which owe its origin to Agreement to Sell and Construction Agreement which are entered into by appellants for development of residential projects which were not taxable up to 01.07.2010. He relied upon the following case laws: (i) Saumya Construction Pvt. Ltd. Vs. CST, Ahmedabad 2016 (46) STR 723 (Tri.-Ahmd.). (ii) CST Vs. Sujal Developers 2013 (31) STR 523 (Guj.). (iii) Commr. of S.T. Vs. Shrinandnagar Co. Op. Housing Society Ltd. 2011 (23) STR 439 (Guj.). (iv) Commr. of C.Ex. Chandigarh Vs. U.B. Construction (P) Ltd. 2013 (32) STR 738 (Tri. Del.). (V) Krishna Homes Vs. CCE, Bhopal 2014 (34) STR 881- CESTAT (Del.). (vi) Alpine Estates Vs. ITO, Hyderabad (ITAT Hyderabad); Extracts of Sec. 80IB of Income Tax Act, 1961. 2.2 The learned coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o Service Tax. He relied upon the following case laws: (i) Magus Construction Pvt. Ltd. And Anr Vs. UOI and Ors.2008 (11) STR 225 (Gauhati). (ii) CCE Chandigarh Vs. Skynet Builders, Developers, Colonizer 2012 (27) STR 388 (Tri. Del./). (iii) Bairathi Developers Pvt. Ltd. Vs. CCE, Jaipur 2016 (43) STR 455 (Tri. Del.). (iv) Assotech Realty Vs. State of U.P. 2007 (7) STR 129 (All.). 2.4 The impugned order on Assignment and transfer fees for the period 2000-01 to 2004-05 factually and legally untenable as allegation is leveled without even mentioning under which heading, the amounts were taxable. In the SCN, there is no mention of the specific heading under which the amounts were taxable reference to Section 67(u) is incorrectly made and w.e.f. 16.07.2007 Section 67(u) was no longer in existence. He relied upon the following case laws: (i) RIICO Ltd. Vs. CCE, Jaipur 2018 (10) GSTL 92 (Tri. Del.). (ii) M/s. Ansal Housing Construction Ltd. CST, New Delhi 2018 (8) GSTL 58 (Tri. Del.). (iii) CST, New Delhi Vs. M/s. Today Homes and Infrastructure 2018 (2) TMI 1413 (Tri. Del.). 2.5 The learned counsel for the appellants further submitted that Khat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Services. He relied upon the following case laws: (i) CST, Delhi Vs. M/s. Omaxe Ltd. 2018-TIOL-585- CESTAT-DEL. (ii) Ircon International Ltd. Vs. CCE, Mumbai-IV 2006 (1) STR 46 (Tri. Del.). (iii) Lakshmi Automatic Loom Works Ltd. Vs. Commr. of C.Ex., Chennai 2007 (7) STR 435 (Tri. Chennai). 2.8 The learned counsel also submitted that the computation of Service Tax at the rate of 5% over and above the amount received is legally erroneous as the Service Tax is to be computed on cum-duty price. He relied upon the following case laws: (i) CCE Vs. Maruti Udyog Ltd. 2002 (141) ELT 3 (SC). (ii) CC.Ex Cus. Patna Vs. Advantage Media Consultant 2008 (10) STR 449 (Tri.Kol). Affirmed by Apex Court 2009 914) STR J49 (SC). (iii) M/s. Star Satellite Services Vs. CCE, Ludhiana 2015 (8) TMI 452 (Tri. Del). 2.9 The learned counsel also submitted that the issue is time barred in view of the following cases: (i) CCE Vs. Chemphar Drugs Liniments 1989 (40) ELT 276. (ii) Pushpam Pharmaceuticals Company Vs. CCE 1995 (78) ELT 401. (iii) M/s. S.P. Builders, M/s/ Gejendra Singh Sankhal Vs. CCE, Jaipur 2018 (2) TMI 833 (Tri. Del.). (iv)Uniworth Textiles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such consent. Further, as this Agreement and the Construction Agreement are co-terminus in nature, the Purchaser shall not be entitled to assign either of these agreements independently without assigning the other Agreement i.e. the Purchaser shall not be entitled to assign his/her/their rights under this agreement without assigning his/her/their rights under the Construction Agreement and vice versa. It is also made clear that the Purchaser will not be able to assign his rights in portions i.e. the Purchaser will have to either assign all his rights under this Agreement or otherwise shall not be entitled to assign his rights at all. In view of the above, it is seen that the amounts received by the appellants in respect of 3 activities undertaken by them i.e. assignment transfer income , assessment and bifurcation fees, Khata transfer fees and forfeiture amounts find their origin in the agreement with prospect to buyers in which the appellants are developers only and are not workings as real estate agents. Therefore, we find that there is considerable force in the agreement that the activity undertaken by them is not in the capacity of a real estate agent but undertaken as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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