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2024 (3) TMI 184 - AT - Service TaxValidity of SCN - SCN suffers from incurable deficiency - Demand raised solely on the basis of Income Tax data shared by the Income Tax authorities - HELD THAT:- In the present case, there is no dispute on the facts that SCN dated 25-03-2021 is issued solely on the basis of Income Tax data shared by the Income Tax authorities to the Central Excise authorities for F.Y. 2015-16 to 2017-18 [upto 30-06-2017], without causing any independent inquiry caused by Central Excise officers and that Data does not appear taken on records as provided under section 36B of the Central Excise Act, 1944. Therefore, there are force in the submission made that SCN suffers from incurable deficiency. There are force in Appellant’s contention that impugned Order is beyond SCN as Service Tax demand is confirmed under Construction of Residential Complex, whereas, SCN dt. 25-03-2021 has not specified under which clause Service falls, for taxability. Order has taken into consideration declared service u/s 66E(b) of Finance Act 1994, which is for construction of a complex, building, civil structure or a part thereof, including a complex or building intended for sale to a buyer, wholly or partly, except where the entire consideration is received after issuance of completion-certificate by the competent authority. However, construction of complex intended for sale to a buyer is not correctly considered in these Orders. In the case of STATE OF WEST BENGAL & ORS. VERSUS CALCUTTA CLUB LIMITED AND CHIEF COMMISSIONER OF CENTRAL EXCISE AND SERVICE & ORS. VERSUS M/S. RANCHI CLUB LTD. [2019 (10) TMI 160 - SUPREME COURT], it is seen that a club and its members are one and the same and the club is formed for the purpose for mutual benefit of its members. This principle equally applies in this case to the Radhe Villa Co-Operative Society, which has constructed residential units for its members only under development agreement with Appellant. Hence, no service tax is payable on Residential units created by Co-operative Society for its Members for personal use, as it is also in exclusion clause of section 65(91a) of the Finance Act 1994. Since the demand service tax is not sustainable on its merit, the issue of limitation need not be dealt and the same is left open in this case. The Service Tax demand confirmed with interest and penalties is not sustainable in this case. The demand of Service Tax upheld by O-I-A with interest and penalties deserves to be set aside - appeal allowed.
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