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TMI Blog2020 (2) TMI 344X X X X Extracts X X X X X X X X Extracts X X X X ..... on of a legal fiction to distinguish rendering of service from supply of goods in a composite transaction the taxability of which was, itself, not denied. In re Suresh Kumar Bansal, the approval accorded to the legal fiction by Hon ble High Court of Bombay was not discarded but its implementability was discarded in the absence of a mechanism, in the statute, for isolating the value of services in a composite transaction. Hence there is no bar on taxation of such composite transaction. The dispute before the Hon ble High Court of Delhi was on the inclusion of the tax in the amount charged in the invoice. It was not an appeal against rejection of a refund claim. While specific directions were issued on the handling of tax deposited, if any, the consideration of claim for refund under section 11B of Central Excise Act, was not a part of the document - Their applicability to the scheme of the negative list as well as the eligibility for refund has not been decided upon in the impugned order especially as the claim is not a consequential relief ordered by the Hon ble High Court but needs examination in the context of section 11B of Central Excise Act, 1944. The claim for refund is resto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d approval of the manner in which it was collected. 5. It cannot but be noticed that the dispute in re Maharashtra Chamber of Housing Industries arose from the incorporation of a legal fiction to distinguish rendering of service from supply of goods in a composite transaction the taxability of which was, itself, not denied. In re Suresh Kumar Bansal, the approval accorded to the legal fiction by Hon'ble High Court of Bombay was not discarded but its implementability was discarded in the absence of a mechanism, in the statute, for isolating the value of services in a composite transaction. Hence there is no bar on taxation of such composite transaction. 6. Both these decisions pertain to the period when the description of each and every activity that was intended to be taxed was enumerated separately and distinctly. With effect from 1st July 2012, the definitional framework of existing entries, and any other service, was erased to render all activities, save those in the negative list, to be liable to tax with further addition, through section 65B of Finance Act, 1994, of deemed services that were also taxable. The decision cited by appellant herein pertains to the pre-negat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or under Section 656(44) after the amendments brought about in the Act by virtue of Finance Act, 2012 - the said controversy is outside the scope of the present petitions and it would not be appropriate for us to examine it in these petitions [see Hindustan Polymers Co. Ltd. and Others v. Collector of Central Excise, Guntur : (1997) 11 SCC 302 = 1999 (106) E.L.T. 12 (S.C.)].' thus mandating further examination of the actual claim of the appellant herein. There has been no ascertainment of the consideration paid for which is relevant to taxability and this lack constrains consideration of the grounds of appeal before us. The applicability of the decision in re Suresh Kumar Bansal, arising as it does from issue framed thus '27. It is a usual practice for builders/developers to sell their project at its launch. Builders accept bookings from prospective buyers and in many cases provide multiple options for making payment for the purchase of the constructed unit. In some cases, prospective buyers make the payment upfront while in other cases, the buyers may opt for construction linked payment plans, where the agreed consideration is paid in instalments linked to the builder achievi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eement to ultimately sell the property under settled terms is signed. In other words, the builder continues to remain the legal owner of the property. At the conclusion of the contract and completion of the payments relating thereto, another instrument called 'Sale Deed' is executed on payment of appropriate stamp duty. This instrument represents the legal transfer of property from the promoter to the buyer. 8.4 In other places a different pattern is followed. At the initial stage, instruments are created between the promoter and all the prospective buyers (which may include a person who has provided the vacant land for the construction), known as 'Sale of Undivided Portion of The Laid'. This instrument transfers the property right to the buyers though it does not demarcate a part of land, which can be associated with a particular buyer. Since the vacant land has lower value, this system of legal instrumentation has been devised to pay lesser stamp duty. In many cases, an instrument called 'Construction Agreement' is parrallely executed under which the obligations of the promoter to get property constructed and that of the buyer to pay the required consideration are incorporated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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