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TMI Blog2021 (12) TMI 737X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 scope of work assigned to the appellant for performance under the Phase-I project were limited for the purpose of purchasing of land from the farmers; signing of agreements of the proposed land in favour of the members of society; processing of papers with the Government and other statutory bodies for getting th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he period post 01.07.2012, onwards inasmuch as such definition clause has specifically excluded the activity of transfer of title in goods or immoveable property by way of sale etc. Hence, mere procurement of land from the farmers and getting necessary approval from the government authorities will not create a tax liability under the taxable category of service . It is a settled legal position that levy of service tax depends on the service rendered, but not on the basis of agreements which were never fulfilled and no payment was received by the service provider. Appeal allowed - decided in favor of appellant. - Service Tax Appeal No. 21032 of 2017 - FINAL ORDER NO. 20852/2021 - Dated:- 16-12-2021 - MR. S.K. MOHANTY, MEMBER (JUDI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arth moving and demolition service defined under Section 65 (97a) of the Finance Act, 1994 (up to 30.06.012) and thereafter, from 01.07.2012 under the category of Services , as defined under Section 65 B (44) ibid. Since, the appellant did not get itself registered with the Service Tax Department and did not discharge the service tax liability on such defined categories of taxable services, the department initiated show cause proceedings against the appellant, which culminated into the adjudication order dated 30.03.2017 (for short, referred to as the impugned order ). Vide the said order, learned Commissioner of Service Tax has confirmed service tax demand of ₹ 3,92,11,460/- along with interest under Section 73 (2) ibid and 75 ibi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of the appellant that the adjudged demands confirmed on them should not stand for judicial scrutiny. 3. On the other hand, the learned AR appearing for the Revenue reiterated the findings recorded in the impugned order. He further submitted that the residential layout designed by the appellant is in ready to use condition for construction of houses and accordingly, such activities undertaken by the appellant should appropriately be categorized as a taxable service under Section 65 (97a) for the period from 01.04.2011 to 30.06.2012 and for the period from 01.07.2012 onwards, the same should termed as taxable service in the definition provided under Section 65 B (44) ibid. The learned AR has relied upon the judgment of Allahabad High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olition and wrecking of building, structure or road, but does not include such services provided in relation to agriculture, irrigation, watershed development and drilling, digging, repairing, renovating or restoring of water sources or water bodies. 65B (44) : service means any activity carried out by a person for another for consideration, and includes a declared service, but shall not include- (a) an activity which constitutes merely,- (i) a transfer of title in goods or immovable property, by way of sale, gift or in any other manner; or (ii) such transfer, delivery or supply of any goods which is deemed to be a sale within the meaning of clause (29A) of article 366 of the Constitution; or (iii) a transaction in mon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we find that the appellant had merely procured land, paid Government fees etc. This activity, in no way, can be considered as a taxable service under the category of site formation and clearance, excavation and earthmoving and demolition service inasmuch as the work assigned under the agreement for completion of the phase I project do not attract any of the clauses itemized in the definition provided under Section 65(97a) ibid. Thus, in our considered view, the activities undertaken by the appellant pursuant to the agreements entered into with the society will not fall under the taxing net for levy of service tax up to the period 01.07.2012. Similarly, the services provided by the appellant would also not fall under the purview and scope ..... X X X X Extracts X X X X X X X X Extracts X X X X
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