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2023 (3) TMI 300 - HC - Service TaxShort payment of service tax - real estate development - transactions for development, purchase and transfer emanated from the Memorandum of Understanding concluded with RBEHWS - activities should be construed as ‘service’ as contemplated under Section 65B[44] of the Finance Act or not - mis-declaration in filing ST-3 returns or not - HELD THAT:- The first respondent has not examined the petitioner’s transactions with RBEHWS, with the land owners who have offered their respective lands for joint development and with the purchasers who have purchased plots in the lands owned by the petitioner. This Court must opine that, if it cannot be disputed that mere transfer of title in immovable properties either by way of sale or gift or in any other manner would not amount to a taxable service, for a complete adjudication of the petitioner’s liability, not just to pay appropriate service tax but also interest and penalty, the first respondent should have examined the aforesaid transactions separately and decided the petitioner’s liability; if for any reason, the petitioner’s bouquet of transactions is to be considered as inseparable and a composite transaction, and hence subject to service tax, there must be justifiable reasoning for the same. On a perusal of the first respondent’s reasoning, this Court would only conclude that these aspects have not been considered, and if these aspects are not considered and liability fastened, the first respondent would have to usurped jurisdiction even insofar as those transactions which are only transactions for transfer of title. Hence the petitioner must succeed on this score and the proceedings restored to the first respondent for reconsideration - Petition allowed in part.
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