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2014 (6) TMI 555 - CESTAT AHMEDABADPlanning advisory and execution services - Revenue held this service as Real Estate Agent, commercial or industrial service and construction of Residential Complex - Demand of CENVAT Credit - Held that:- appellants themselves in their appeal memorandum have stated, as reproduced above, that when the scheme is completed, all the members are taken up as either members or share-holders of the society or NTA and the persons of the builder go out of the NTA or the society. Eventually, the NTA or the society either enter into sale deeds in favour of the members or just allots the land in favour of the members. As reproduced by us above, admittedly the land was purchased in the name of the society and the society allotted the land to the members without a registered sale deed thereby stamp duty was avoided. Measures taken by the appellants or the public at large to avoid stamp duty or to devise mechanism to legally not to pay stamp duty should not be a ground for demanding Service Tax or upholding the demand for Service Tax. But what the appellants are asking the Revenue to do is to ignore the legal and statutory documents executed for the purpose of construction/development and transfer of property between the Society/NTA and members. It has to be noted that it is the Housing Society/NTA which purchases the land even though the builder pays to the society to facilitate the payment for the land. Similarly even though the builder identifies the customer/purchaser, the customer/purchaser pay for the land and the constructed building to the Society/NTA and not to the builder. Demand in respect of Real Estate Agent Service - Held that:- The definitions of Real Estate and Consultant would clearly show that the definition covers any service in relation to sale, purchase, leasing or renting of real estate. The Consultant covers a person who renders in any manner various types of activities which include all the activities undertaken by appellant in this case. We have to note that the words used are rendering any service in relation to Real Estate. In the case of Real Estate Consultant, it means rendering advice, consultancy etc. in any manner of Real Estate. Under the circumstances, any services rendered in relation to Real Estate and any advice or activity undertaking in relation to Real Estate for a service receiver would be covered under this category and unfortunately for the appellant the definition clearly cover them. Demand in respect of Construction Service - works contract - date of levy - composition scheme - Held that:- In the case of commercial or industrial service also appellant’s claim is only that there is nobody in between the purchaser of a portion of the property or mall or commercial complex constructed by them and again the same ground has been explained. This contention cannot be accepted - entitlement to benefits of composition scheme arises only after exercise of option as per rules. For the period prior to 2007, no such option would be available for the services. Moreover, it was also submitted that it was a clear understanding of the legislature that many of the services which were included prior to works contract service which has come from 1-6-2007 were, in fact, covered under some other category of service especially relating to construction activity. Therefore, it can not be said that prior to 1-6-2007, the appellant was not liable to payment of Service Tax even if service was classifiable and liable to Service Tax earlier. - Decision of Nagarjuna Construction Co. Ltd. reported in [2010 (6) TMI 91 - ANDHRA PRADESH HIGH COURT] followed. Appellants have not been able to make a prima facie case in their favour. Keeping in view the peculiar facts and circumstances of the case and the facts that no financial difficulties have been pleaded and the balance of convenience, etc. it is felt that the appellant should be directed to deposit an amount of Rs. 2 crore as pre-deposit for hearing the appeal. Taking the interest quantum also into account, but without taking penalty, the amount required to be deposited would come to less than 10% of the dues - stay granted partly.
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