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2018 (6) TMI 80 - AT - Service TaxEvasion of service tax - Construction service - liability of service tax - date of completion certificate - whether the liability is confined to the builder/developer or shall be shared by the land owner, who has parted with his land with an intention to be converted into a residential complexes and has simultaneously sold the portion of the developed property to the buyers of his choice - Penalty u/s 78 of FA - suppression of facts with intend to evade payment of tax - applicability of Section 73 (3) of Finance Act Held that:- The flats sold by the land owner before the completion certificate was obtained i.e. before 20th March, 2012 will invite the liability of Service Tax upon the land owner. However, the flats sold after the said date of receiving completion certificate, since no more construction services were rendered after the said date, the land owner will not invite any liability to the Service Tax. Also with respect to the one flat, which has been gifted by him to his own son vide Deed dated 30thOctober, 2012, the liabilities stand exempted under Section 65 (91A) of the Finance Act - there is no infirmity in the order under challenge where the extra levy of the subsequent sale of flats has been done away. So, as far as that part of the order is concerned, it is upheld. Penalty u/s 78 - tax liability deposited before issuance of SCN - Held that:- There has been plethora of judgements that where the assessee has paid the tax liability before the issuance of show cause notice and the authorities could not find any fraud or wilful intention on the part of the respondent, in terms of provisions contained in Section 73 (3) of the act, no further proceedings were warranted - the act of land owner for getting the map approved for the complex to be constructed on this land by same developer prior the sale is complete since invites no service tax liability, the appellant cannot be accused of suppressing the facts with an intention to commit fraud or wilful suppression - There is no evidence on record which can prove beyond reasonable doubt about the alleged fraud or wilful intention to suppress the facts, so as to evade tax liability - penalty set aside. Appeal allowed in part.
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