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TMI Blog2024 (8) TMI 1448X X X X Extracts X X X X X X X X Extracts X X X X ..... d category.' Thus, the issue in hand stand settled in favour of the appellant, therefore, the demand is not sustainable - the impugned order is set aside - appeal allowed. - HON'BLE MEMBER ( JUDICIAL ) , MR. RAMESH NAIR And HON'BLE MEMBER ( TECHNICAL ) , MR. C. L. MAHAR Shri. Saurabh Dixit , Advocate for the Appellant Shri Himanshu P Shrimali , Superintendent ( AR ) for the Respondent ORDER RAMESH NAIR The brief facts of the case are that the appellants are engaged in trading of land, i.e. purchase and sale of land. As per the customary in such transaction, generally such sale and purchase transactions are preceded with Agreement to sale. The appellant pays advance to the seller of land and executes such agreement to sale, and later on, purchases the land by executing sale deed. On at some occasions, due to various reasons, it may so happen that the appellant becomes confirming party where the property is eventually sold to the third buyer, and the appellant receives their advance back along with some mark up in such transaction. The entire sale price suffers Stamp duty, include the component of advance as well as mark up being received back by the appellant. Such arr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we find that there is no consideration defined and/or provided for the alleged service. In absence of any defined consideration for the alleged service, there is no contract of service at all, and hence the transaction is not liable to service tax. Under the facts and circumstances we find that the appellant entered into an agreement of trading in land, wherein they agreed to transfer, a measurement or area of land, in a particular area in favour of the Sahara India. Such land was to be arranged by them by way of procurement from the land owners. The appellant was also obligated to examine the title of the prospective land owner and to further ensure the availability of land owner at the office of the Registrar for execution of the sale deed. In fact Sahara India instead of paying the price directly to the land owner, paid lump sum amount to the appellant. Thereafter the appellant identified the land, the seller, and after being satisfied with the title of the seller, entered into agreement with the seller and obtained power of attorney, in their favour. Thereafter the appellant transferred the land in favour of Sahara India. Thus we find that the transaction is one of trading in l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service tax. However, existence of consideration cannot be presumed in every money flow. ... The factual matrix of the existence of a monetary flow combined with convergence of two entities for such flow cannot be moulded by tax authorities into a taxable event without identifying the specific activity that links the provider to the recipient. 12. ... Unless the existence of provision of a service can be established, the question of taxing an attendant monetary transaction will not arise. Contributions for the discharge of liabilities or for meeting common expenses of a group of persons aggregating for identified common objectives will not meet the criteria of taxation under Finance Act, 1994 in the absence of identifiable service that benefits an identified individual or individuals who make the contribution in return for the benefit so derived. 13. ... Neither can monetary contribution of the individuals that is not attributable to an identifiable activity be deemed to be a consideration that is liable to be taxed merely because a club or association is the recipient of that contribution. 14. ... To the extent that any of these collections are directly attributable to an identifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... price decided in MoU, could not be finalized and therefore we feel that taxable value has not reached finality and therefore demanding service tax on the entire amount paid to the appellant for acquisition of land is not sustainable in law in view of the discussion in the preceding paras. 32. Further we find that the issue relates to interpretation, and there is no mala fide on the part of the appellant. The transaction is duly recorded in the books of account maintained by the appellant. Further there is no suppression of information from the revenue. Accordingly, we hold that the extended period of limitation is not applicable. 33. Consequently, we allow the appeals and set aside the impugned order. The appellant shall be entitled to consequential benefits, in accordance with law. 5. In the above decision, in the identical nature of transaction, it was held that assessee cannot be charged with service tax under Real Estate Agent . Following the said decision of this Tribunal, we are of the view that in the facts of present case the appellant s activity does not fall under the category 5 ST Appeal No. 13203 of 2013-DB of Real Estate Agent Service, hence service tax demand under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the MoU that the amount payable to the appellant is not quantified and it is more of the nature of a margin and share in the profit of the deal in purchase of land. We feel that for levy of service tax, a specific amount has to be agreed between the service recipient and the service provider. As no fixed amount has been agreed in the MoU which have been signed between the parties, the amount of the remuneration for service, if any is not clear in this case. In this regard, we also take shelter of this Tribunal s decision in the case of Mormugao Port Trust vs. CC, CE ST, Goa 2017 (48) S.T.R. 69 (Tri. Mumbai). The relevant extract is reproduced here below : 18. In our view, in order to render a transaction liable for service tax, the nexus between the consideration agreed and the service activity to be undertaken should be direct and clear. Unless it can be established that a specific amount has been agreed upon as a quid pro quo for undertaking any particular activity by a partner, it cannot be assumed that there was a consideration agreed upon for any specific activity so as to constitute a service. In Cricket Club of India v. Commissioner of Service Tax, reported in 2015 (40) S.T. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted at the time of the issue of the show cause notice for example, in the case of MoU dated 15/11/2003 entered between Sahara India Ltd. and the appellant, the agreement is for provisioning of 100 acres of land at Village Rora, Distt. Lalitpur, U.P. and for this purpose an amount of Rs. 6,75,00,000/- have been remitted for land cost and 25 ST/50103-50104/2014 an amount of Rs. 1,66,50,000/- have been remitted for the purpose of stamp duty and registration. Thus, a total amount of Rs. 8,41,50,000/- have been remitted to the appellant out of which a total amount of Rs. 3,66,32,000/- have been spent by the appellant for procurement and registration of land. Thus, an amount of Rs. 4,75,18,000/- still remain unspent with the appellant. It is to be seen that out of the above amount though the MoU was for 100 acres of land till the issue of the show cause notice only 77.96 acres of land could only be acquired and thus the remaining amount still was to be used for procurement/acquisition of balance land. This indicates that firstly; the MoU has not been executed fully and therefore the actual remuneration to the appellant have not got finalized and therefore we feel that issuing the show ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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