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2022 (11) TMI 1279 - AT - Service TaxClassification of services - Business Support Services or not - Joint venture - co-developer or agent - appellant developed and built residential scheme on the land owned by Sameet and Samprat, a non-trading organization - Department contended that the appellant's activity is the Support of Business of the joint venture therefore, the appellant have provided Business Support Service - time limitation - suppression of facts or not - HELD THAT:- It is clear that the appellant is not an agent and providing service to anyone else whereas the appellant (SCPL) is an active party to the joint venture with M/s. Safal Infrastructure Pvt. Limited and M/s. Pegasus Commercial Co-op Society Limited. The consideration is also on the basis of the profit of joint venture. In this fact, the appellant (SCPL) is not providing any service to any other person and the appellant was assigned the work in the capacity of co-developer and not an agent. Therefore, it cannot be said that appellant have provided Business Support Service to any other person. The Hon'ble Supreme Court in the case of UOI vs. Mahindra & Mahindra Limited [1995 (3) TMI 88 - SUPREME COURT] held that ordinarily the Court should proceed on the basis that apparent tenor of agreement reflects the real state of affairs. Though it is open to Revenue to allege and prove that apparent is not real. In the present case also, if strictly go through the above agreement, it is nowhere mentioned that appellant is a service provider to some service recipient. As per the agreement, all the parties to co-development agreement have been assigned to their respective jobs and all have performed in favor of the joint venture in which again all the three parties are participants. Therefore, it is clear that the appellant have not provided any service to the joint venture. Time limitation - Suppression of facts - HELD THAT:- The appellant have not carried out activities clandestinely as the same were as per the co-development agreement and was on principal to principal basis. The case was made out on the observation of audit from various records of the appellant and all the transactions were admittedly recorded in the books of accounts. In this fact, the suppression of fact or any malafide to evade payment of service tax is not established. Therefore, the demand of service tax is hit by limitation also. The impugned order is not sustainable hence, the same is set-aside to the extent it confirms demand of service tax, interest and penalties - Appeal allowed - decided in favor of appellant.
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