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TMI Blog2021 (7) TMI 95X X X X Extracts X X X X X X X X Extracts X X X X ..... when it issued the permission to construct the said residential complex. The competence of said Gram Panchyat got retained from the order of High Court of February, 2014 - the completion certificate dated 22.2.2017 as was issued by Gram Panchayat was absolutely valid, at the time the Show Cause Notice was issued to the appellant - SCN is void. Levy of interest on account of late payment of service tax - HELD THAT:- It is observed that the appellant herein has issued the receipt of installment as and when the installment was received no invoice was ever issued by the appellant. The sale deed is a legal documents of the title of property hence cannot be termed as invoice. Also the date of completion of service will be the date when possession of the property is given to the purchaser which shall only be after receipt of sale consideration and the date of receiving final installment, therefore, later will be the relevant date for determination of point of taxation. The calculation placed on record reveals that the service tax liability has been discharged as and when the payment of requisite installment has been received by the appellant. Above all, there is no evidence produced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ram Panchayat Chota Bangarda. Based on these observations that a Show Cause Notice bearing No. 2819 dated 24.10.2017 served upon the appellant proposing the recovery of service tax of ₹ 3641231/- and the recovery of interest of ₹ 88,754/- being not paid by the appellant along with the interest at proportionate rate and the appropriate penalties. The said proposal was initially got confirmed vide the Order-in-Original No. 49/2018-19 dated 15.1.2019 has been rejected by Commissioner (Appeals) vide the order under challenge. 3. I have heard Ms. Priyanka Goel, learned Counsel for the appellant and Shri Pradeep Juneja, learned Departmental Representative for the Department. 4. It is submitted on behalf of the appellant that the appellant started constructing residential complex in the year 2010 with the permission dated 15.1.2011 as was received from Gram Panchayat, Chota Bangarda. After constructing the same completion certificate was also obtained from the said Gram Panchayat on 22.2.2013, it is submitted that the Department has issued the Show Cause Notice on the wrong ground that the area where appellant has constructed the residential complex, falls under IMC and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ificate dated 5.2.2013 received in favour of the residential complex constructed by the appellant from Gram Panchayat, Chota Bangarda is valid certificate or not; (2) Whether the appellant is liable to pay the interest of ₹ 88,754/- on account of late payment of service tax; (3) Whether the Show Cause Notice is barred by time. The appellant had also obtained certificate from the concerned Architect being under bonafide belief that the completion certificate issued by Chartered Engineer/Architect is permissible in addition to the certificate from Gram Panchayat was obtained under the bona fide belief of said Gram Panchayat to be the competent authority in terms of Section 66E(b) of Finance Act. I am of the opinion that benefit cannot be denied to the appellant who has been under bona fide belief and has been obtaining requisite permissions or certificates from the competent authorities. 8. Issue wise findings are as follows; Issue No. 1 9. I observe that there is no dispute about the fact that the permission to construct the residential complex was obtained from Gram Panchayat Chota Bangarda, Indore in favour of the appellant. All other requisite permission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 66E of Finance Act, 1994 has to be followed. 11. Once the above admissions are read along with the aforesaid section it becomes clear that though on the date when completion certificate was issued in favour of the appellant by the Gram Panchayat, Chotta Bangarda, the impugned area, the jurisdiction thereof got vested with IMC, Indore. But once the said notification got quashed in February, 2014 the jurisdiction stands revested in Gram Panchayat itself. Thus the Show Cause Notice of October, 2017 should not have been issued. Except for 17 days i.e. with effect from 5.2.2013 to 22.2.2013 Gram Panchayat, Chota Bangarda was not the competent authority in terms of Section 66E (b) of the Finance Act. Rather the said Gram Panchayat was the, competent authority when it issued the permission to construct the said residential complex. The competence of said Gram Panchyat got retained from the order of High Court of February, 2014. Hence at the time of issuance of Show Cause Notice it should not have been said that due to the time gap of 17 days the Gram Panchayat was not the competent authority to issue the construction certificate. As a result, I am of the opinion that the completion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen invoices not received, the date of completion of provision of service; or (c) If advance is received then the date when such advance amount is received. It is observed that the appellant herein has issued the receipt of installment as and when the installment was received no invoice was ever issued by the appellant. The sale deed is a legal documents of the title of property hence cannot be termed as invoice. Also the date of completion of service will be the date when possession of the property is given to the purchaser which shall only be after receipt of sale consideration and the date of receiving final installment, therefore, later will be the relevant date for determination of point of taxation. The calculation placed on record reveals that the service tax liability has been discharged as and when the payment of requisite installment has been received by the appellant. Above all, there is no evidence produced by the Department to the contrary. The burden to prove the allegations was upon the Department. Accordingly, I am of the opinion that there is no late payment of service tax by the appellant as is alleged by the Department. Imposition of interest on the ground ..... X X X X Extracts X X X X X X X X Extracts X X X X
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