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TMI Blog2024 (5) TMI 127X X X X Extracts X X X X X X X X Extracts X X X X ..... oms and connected facilities like kitchen, dining room, parking spaces only. The demand of service tax cannot sustain when the premises is rented out for the purpose of accommodation and related activities. It is therefore held that the demand cannot sustain and requires to be set aside - demand set aside. Levy of service tax - Business Auxiliary Services - nature of activity - sale or service - transfer of percentage of holding to joint venture partner - HELD THAT:- The transaction is nothing but sale of shares and there is no situation of providing services to M/s. Ascott (Mauritius) .The Tribunal in the appellant s own case M/S. RATTHA HOLDING CO. PVT. LTD. VERSUS COMMISSIONER OF CENTRAL SERVICE TAX, CHENNAI [ 2018 (9) TMI 1722 - CESTAT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... though consideration was received by them, the Department conducted investigation. It was noticed that the appellant had rented immovable property to M/s. Siesta Hospitality Limited (SHSL) and had not paid the service tax during the period from April 2010 to March 2012 on the rental amount received by them. So also, they had not discharged Service Tax on the consideration received by them from M/s. Ascott (Mauritius) for selling the shares pursuant to joint venture entered between the appellant and M/s. Ascott (Mauritius). Further, the appellant had not discharged appropriate service tax on Management, Maintenance and Repair services. Show Cause Notice dated 21.02.2013 was issued to the appellant proposing to demand Service Tax under the ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adverted to the discussions made by the Adjudicating Authority in Paragraph 7.6 of the impugned order. It is explained by the Ld. Counsel that the appellant had transferred a percentage of their holding to their joint venture partner, M/s. Ascott (Mauritius). The transaction was in the nature of sale of shares. There is no service provided. The appellant had not conducted promotion of business of the purchaser of the shares. It is submitted that the very same issue was considered by the Tribunal in the appellant's own case vide Final Order No. 42305/2018 dated 27.08.2018. The Tribunal had set aside the demand observing that it is merely sale of shares and there is no provision of service. In regard to the demand raised under Management ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, including hotels, hostels, boarding houses, holiday accommodation, tents, camping facilities. Explanation 2.--For the purposes of this sub-clause, an immovable property partly for use in the course or furtherance of business or commerce and partly for residential or any other purposes shall be deemed to be immovable property for use in the course or furtherance of business or commerce; 6.2 From the above definition, it can be seen that when a building is rented out for being used for the purposes of accommodation, including hote ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emanded service tax under "Business Auxiliary Service" for sale of shares by appellants to M/s. Rattha Ciadels OMR Apart Hotel Pvt. Ltd. Here again, the appellants have paid Income-tax on the profit under Capital Gains under the Income-tax Act, 1961. The amount received has been booked as a Profit on Sale of Shares, in their books of accounts. The main ground for alleging that the transaction would fall within the "Business Auxiliary Service" is that the shares of face value of Rs.10/- has been sold by the appellant at a premium of Rs.21.80/- per share, when the company was reeling under financial loss. Whatever be the circumstances under which the shares were sold or the premium of the shares was fixed between the parties, the transaction ..... X X X X Extracts X X X X X X X X Extracts X X X X
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