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2013 (12) TMI 379 - AT - Service TaxService Tax liability - Real Estate Agent - Commercial and Industrial Construction services - In-eligible benefit of abatement from the gross value - Benefit of Notification No.12/2003 - Held that:- appellant herein had developed land owned by various societies/non-trading corporations under various projects - appellant herein had collected the development charges when the said scheme/project was executed and handed over by them - to get covered under the definition of real estate agent and real estate consultant, it has to be brought on record that the person has rendered directly or indirectly any services. It is seen from the records and the agreement entered into by the appellant with various entities, we find that the appellant is liable for the profit or the loss of the said project despite the said project was executed in the name of special purpose vehicles. It is also seen that the entire project was financed by the appellant herein. The said facts are not denied or disputed by the lower authorities. It is to be seen on this factual matrix whether there was any service rendered by the appellant in the category of real estate agent for receiving development charges. It is common knowledge that the real estate agent transacts the business of sale or purchase of the property, leasing or renting of the property and gets an amount as a commission. Though the definition of real estate consultant talks about evaluation, construction, design, development, construction, implementation, supervision, maintenance, marketing, acquisition or management of real estate, it has to borne out of the record that such services are rendered. Adjudicating authority has confirmed various other demands on the appellant in a finding that the appellant is not liable to shift the Service Tax liability under the category of Works Contract services, as he has already discharged Service Tax liability under the category of commercial and industrial construction services. It is undisputed that the appellant had discharged the Service Tax liability as understood by him under the category of commercial and industrial construction services and later on shifted to works contract services - construction of residential complex services cannot be liable to Service Tax prior to 01.06.2007, if the appellant has paid VAT on the impugned activity as Works Contract - claim of the appellant that they have correctly discharged the Service Tax liability by availing the abatement as given under Notification No.12/2003, is also justified, in as much as there is nothing on record that the appellant has not used any material for completion of said project - Following decision of Commissioner of Service Tax Versus Sujal Developers [2011 (4) TMI 1023 - Gujarat High Court] and Cemex Engineers Vs CST Cochin [2009 (3) TMI 423 - CESTAT, BANGALORE] - Decided in favour of assessee.
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