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TMI Blog2018 (12) TMI 1112X X X X Extracts X X X X X X X X Extracts X X X X ..... Club', which was fully furnished with plant, machinery, furnitures, furnishings and other operating equipments provided by the appellant. 2. The salient features/clauses of the Agreement are - "2.3 The Second Party (AMPL) shall use the name and logo of the Club or its name and logos for the operation of the Club, as appropriate, for the marketing, and sale of membership or other items to members, guests or third parties using the club (or any part thereof) and for any other purpose connected to operating running and maintaining the club. 2.4 The First Party agrees that it shall be responsible to provide the land on which the Club shall be built, construct the Club and provide the Plant & Machinery, Furniture, Furnishings and Equipment and Operating Equipment, all as per the Plans and Specifications which shall be mutually agreed upon with the Second Party and shall also be responsible for all major repairs and maintenance to the above. 2.5 The Second Party agrees that it shall be responsible for operating and managing of the Club, providing of the Operating Supplies, hiring of employees, paying of their wages and meeting all their statutory payments etc. 3.2 The First Part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of the Club pursuant to this Agreement, the Second Party shall share a percentage of the revenue earned during a month from the following item, whichever is higher (hereinafter referred to as "the Revenue"): Sl. No. Nature of Revenue %of Revenue sharing for the First Party AHPL %of Revenue sharing for the Second Party AMPL 1 Membership Fees 50% 50% 2 Sub-licensing of areas 50% 50% 3 Annual Subscription Fees 30% 70% 4 Room Rent 30% 70% 5 Sports & Recreation 30% 70% 6 Sponsorship Fees 10% 90% 7 Food & Beverages 10% 90% It is agreed by the Parties that in "calculating the Revenue" payments made to credit card companies, staff tips, outgoings/payouts shall not be included. The above revenue payable to the First Party shall be paid in Indian Rupees at the amount stated, subject to deduction at source of those elements of income tax, prescribed under the Income Tax Act of 1961. 9.2 The Share of Revenue is payable with effect from the date of this Agreement and shall be paid until the expiry of this Agreement or sooner termination in accordance with Clause 16 hereof and shall be payable by the Second Party to the First Party within ten (10) days from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... word 'immovable property' under Section 65 (105)(zzzz) of Finance Act, 1994, inasmuch as clause (d) of the exclusions term, definition of 'Immovable Property' excludes building used solely for residential purposes & building used for the purposes of accommodation including hotels, boarding house, holiday resort, tents, camping facilities. It had been claimed that the club consisted of club rooms & restaurants, bars & banquet rooms & other public rooms, recreational facilities including gymnasium, aerobics, locker room etc. for the use of its members. 6. Adjudicating Authority rejected the claim after holding that the club leased by the appellant fell in the definition of Immovable Property, inasmuch as the club provided miscellaneous service to only its members and their guests as a multiple use building and is not akin to a hotel. It was also held that the claim for Rs. 11,81,473/- was only filed within the limitation period and the rest was barred by the limitation period. 7. The learned Commissioner (Appeals) upheld the OIO after observing that the club was a multiple use building and was rightly covered under the service tax net under renting of immovable property. It was als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In case of a building located in a complex or an industrial estate, all common areas and facilities relating thereto, within such complex or estate, but does not include- a. Vacant land solely used for agriculture, aquaculture, farming, forestry, animal husbandry, mining pruposes; b. Vacant land, whether or not having facilities clearly incidental to the use of such vacant land; c. Land used for educational, sports, circus, entertainment and parking purposes; and d. building used solely for residential purposes and buildings used for the purposes of accommodation, tents, camping facilities. 10. The appellant have claimed that their case falls in exclusion (d) which applies to buildings used for purpose of accommodation including hotels etc. In the refund application, it was submitted that the club consists of club rooms & restaurants, bars and banquet rooms etc. for the accommodation and use of its members. The said contention of the appellant remains unrebutted. However the appellant's contention has been brushed aside on the ground that the club is a multiple use building and the service provided by the club were available only to members and their guests. The said conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Hon'ble Karnataka HC in case of K.V.R Constructions v CCR Bangalore 2010 (17) STR 6 it had been held that 'once it is admitted that amount paid by the assessee is not a duty but deposit, there is no necessity of making the calim by invoking section 11B of the Act. The Department wrongly assumed that section 11B of the Act was applicable in the present case. The High Court held that the order for rejecting the refund claim beyond the period of limitation is unsustainable and thus quashed and directed that the refund should be granted forthwith. 14. In view of above, it is prayed that the appeal may be allowed. 15. Opposing the appeal, ld. AR for Revenue states that the Department has taxed AHPL to service tax for renting of immovable property and not AMPL, which is maintaining and running the club. He further refers to para 5 of the Lease Deed dated 22.05.2007 between the AHPL and AMPL, which reads as follows:- "5. In lieu of grant of the Lease by the First Party to the Second Party, the Second Party undertakes to pay a monthly rental of Rs. 18,00,000/- (Rupees Eighteen Lakhs only) till 31st March, 2007. Thereafter, the rent shall be increased by 6.27% annually. The second part ..... X X X X Extracts X X X X X X X X Extracts X X X X
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