Home Case Index All Cases Service Tax Service Tax + AT Service Tax - 2018 (5) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2018 (5) TMI 889 - AT - Service TaxConstruction of houses and residential premises with different land owners, in respect of one joint development agreement - Revenue has demanded service tax from appellant on the ground that it was not paid correctly on the villas which were constructed by appellant for land owner, as a part of compliance of the agreement entered with the land owners - extended period of limitation - Held that: - It is undisputed that appellant has provided construction services to the land owner and as a consideration, received legal rights on his share of land, constructed Villas on that land and sold them, which would mean that appellant is investing the consideration received from first transaction of land owners right to construct in second transaction - merely because the consideration received from land owners is invested in construction of villas to other buyers on which service tax is paid, it cannot be concluded that service tax paid on consideration received from land owners has to be evaluated differently. Service tax is liable to be paid on gross amount charged i.e. to say consideration received from land owners in kind and consideration received from prospective customers i.e. total gross amount. In the case in hand, the amount attributable to the consideration received by appellant in the form of land rights from the land owner stands included in the value of villas sold to prospective customer which would mean that whatever consideration was received by the appellant in form of developmental right was considered in assessable value. CBEC vide circular dated 16.02.2006 in respect of collection of service tax under construction of complex services had issued instructions under section 57 (B) of Central Excise Act, 1944 which are made applicable to service tax under section 83 of Finance Act, 1994 - it was held that the gross amount charged by the builder is liable to tax - it is evident that appellant has complied the service tax liability on the construction undertaken on joint development basis on the value of construction which is mandated in Section 67 of Finance Act, 1994, read with rules made thereunder. In our view, if once the service tax liability has been discharged on the gross amount, demand of service tax on the same amount again would amount to double taxation. Extended period of limitation - Held that: - it cannot be held that there was a malafide intention on the part of the appellant to suppress any facts or make mis-statements, with an intention to evade service tax liability - demands are also hit by limitation and extended period cannot be invoked for the demands received. Demand is not sustainable on merits as well as on limitation - appeal allowed - decided in
|