9911796707
TMI Blog2021 (12) TMI 737X X X X Extracts X X X X X X X X Extracts X X X X ..... nment Employees House Building Co-operative Society Ltd., Mysore for carrying out various activities namely, procurement for land from farmers, getting land thus procured converted from agricultural land to non-agricultural land, seeking various government permissions and approvals, necessary till formation of residential layouts etc. The scope of work and the time limit for completion of the project under the said agreement were further extended by two more agreements dated 27.02.2009 and 05.11.2011. The scope of work as per the agreements was distributed into three phases. For carrying out the assigned task, the appellant was paid the amount as per the norms prescribed in the agreements. The Service Tax Department gathered the information ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e phase - I activities and that the entire amount received was spent by them for the purchase of land and payment government fees. He further submitted that during the disputed period, the appellant did not provide any service nor done any physical activity on the agricultural land either before or after conversion into non-agricultural land. Learned Advocate also submitted that the activities undertaken by the appellant relate to sale and purchase of land and that since no physical activities were undertaken in relation to phase - II and phase - III, the appellant should not be liable to pay service tax under Section 68 ibid. Further, he also submitted that the amount received by the appellant from the society have been properly accounted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... formation and clearance, excavation and earth moving and demolition" was inserted in Section 65 ibid vide Finance Act, 2005 dated 13.05.2005 w.e.f 16.06.2005. Such definition was in vogue till introduction of the negative list concept, effective from 01.07.2012. Under the amended provisions, Section 65B was inserted in the statute book, providing for interpretation of various clauses contained therein. Clause (44) in the said section has assigned the meaning of the phrase 'service' for the purpose of levy and collection of service tax. The said definitions relevant for consideration of the present dispute are quoted herein below: Section 65(97a) : "site formation and clearance, excavation and earthmoving and demolition" includes, - (i) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and other statutory bodies for getting the land in favour of such members and for ensuring that the in-principle approval has been obtained for the layout plan from the concerned statutory authorities. Further, it is observed from the case records that the Partner of the appellant has sworn an affidavit dated 15.11.2021, confirming inter alia, that the appellant is still in the Phase I stage and had completed only purchasing of the land, seeking various permissions and that no physical activity has been started/undertaken for carrying out the work under the Phase II and Phase III projects. We have also perused the letter dated 27.11.2013 addressed by the Secretary of the housing society to the appellant, confirming payments made for the pha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he taxable category of "service", as defined (supra). We find support from the judgments relied upon by the appellant that under similar set of facts and circumstances, the provisions contained in the Service Tax statute shall not be attracted, calling for levy of service tax on activities undertaken by the appellant, which are restricted to buying land; selling of the same and payment of Government fees etc., in as much as the Phase I activity is concerned. It is not the contention of Revenue that the appellant has undertaken works as required in other phases, in terms of the agreements. No evidence whatsoever has been also adduced for the same. It is a settled legal position that levy of service tax depends on the service rendered, but no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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