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2021 (10) TMI 1229 - AT - Service TaxClassification of services - Right to use of car parking space or not - car parking charges collected by the appellant from its customers - levy of tax on Club Membership Services - Demand of Service Tax on amounts received after 01/07/2010 for ‘Construction Services’ rendered upto 30/06/2010 - time limitation. Car parking charges collected by the appellant from its customers - Right to use of car parking space or not - time limitation - HELD THAT:- The general terms and conditions sheet as well as the sale deed mentions the said amounts against the Right to use car parking space and not as sale of car parking space. The department has not brought any contrary submission to challenge the above finding that the Appellant has provided right to use towards car parking space and not ‘Construction Service’ towards the same Right to use - the Appellant has made out a case on limitation ground as the said service was introduced w.e.f. 01/07/2010 and there was no clarity as to the taxability of such amounts as received by the Appellant. Hence the Appellant was under a bona fide belief that since it was giving Right to use of car parking space, no tax is payable under the category ‘Construction Services’ - in the instant case of the Appellant, since the entire demand has been raised by invoking extended period of limitation, the same is set aside. Club Membership Services - HELD THAT:- Since there was no club in existence during the period of dispute, there cannot be any demand raised on the said ground. The Architect’s Certificate dated 16/08/2016 is testimony to the stated fact and there is no contrary evidence produced by the department to dispute the same - there are merit in the submission of the Appellant and accordingly the demand under the ‘Membership of Club or Association Services’ also needs to be set aside. Demand of Service Tax on amounts received after 01/07/2010 for ‘Construction Services’ rendered upto 30/06/2010 - HELD THAT:- The essential condition for determining the taxability is (i) whether payment made by the buyer to the builder on or after 01/07/2010 and (ii) whether payment made before or after issuance of completion certificate by the competent authority and since in the case of the Appellant the completion certificate was not issued when the amounts were received, the same is taxable under the Service Tax net - there is no ambiguity in the condition as the same only extends the tax net of the ‘Construction Services’ to any amounts received prior to obtaining completion certificate - the demand on the ‘Construction of Residential Complex Services’ as confirmed by the learned Adjudicating authority is set aside in entirety. Time Limitation - HELD THAT:- The department has failed to produce sufficient evidence to satisfy the ingredients for invocation of extended period of limitation and hence, the invocation of extended period of limitation to demand duty cannot be sustained in the case at hand. The entire demand cannot be confirmed both on merits and on limitation - Appeal allowed - decided in favor of appellant.
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