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TMI Blog2014 (7) TMI 933X X X X Extracts X X X X X X X X Extracts X X X X ..... ce under Section 65 (88) of the Finance Act, 1994 read with Section 65 (105)(v) which defines taxable service as any service provided or to be provided by a real estate agent in relation to real estate. Duty of Rs. 3,07,83,184/- was confirmed along with interest and penalties under Section 76 and Section 78 of the Finance Act, 1994. During investigation of the case, an amount of Rs. 88,12,419/- was deposited by the appellants. The Commissioner, in his said order, appropriated this amount of Rs. 88,12,419/- against the tax liability mentioned above. The appellants are in appeal before the Tribunal against the order of the Commissioner. 2. Heard both sides. Revenue and the appellants also placed written submissions on record. 3. The contention of appellant is that they are a separate legal entity. They acquire land on outright purchase or lease basis for wind far projects and then sell/sub-lease the same to the customers who put up the Wind Turbine Generators. Although the land that is acquired by them is identified by M/s SEL, the sale deeds are duly executed by M/s. SRL themselves on payment of stamp duty. The customer who purchases the land is liable to bear all expenses during ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ween these two parties. It is appropriate to see the relevant provisions of Finance Act: Section 65(105)(v): "taxable service" means any service provided or to be provided to any person, by a real estate agent in relation to real estate. Section 65(88): "real estate agent" means a person who is engaged in rendering any service in relation to sale, purchase, leasing or renting, of real estate and includes a real estate consultant; Section 65(89): "Real estate consultant" means a person who renders in any manner, either directly or indirectly, advice, consultancy of technical assistance, in relation to evaluation, conception, design, development, construction, implementation, supervision, maintenance, marketing, acquisition or management, of real estate. 6. There is no dispute regarding the factual arrangement between M/s. SEL & M/s. SRL. The relevant clauses of the Agreement are reproduced below: WHEREAS A. The Company (M/s. SEL is a public limited Company incorporated in India and is a leading manufacturer of Wind Turbine Generators ("WTGs") and in addition to su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Windfarm Land has been leased/acquired from the any government in which case, SRL shall notify the Company about the restrictions in relation to sub-lease or transfer or any other restrictions in relation to the use of such Windfarm Land by SRL, the Company or the Customer; (d) all Government and regulatory approvals for the acquisitions/lease of the Windfarm Land should be obtained prior to the Transfer of such Windfarm Land to the Customer or to the Company as the case may be; (e) SRL shall ensure that there are no restrictions on the Company setting up a windfarm project on the Windfarm Land for its Customers; (f) SRL undertakes to ensures that the acquisition of the Windfarm Land does not in any way contravene any Applicable Laws. 3.3 Upon completion of the acquisition of Windfarm Land by SRL in accordance with Clause 3.1, SRL shall immediately inform to the Company of the details of the land acquired. 3.5 Upon completion of the acquisition of Windfarm Land by SRL in accordance with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so required by SRL provide loans to SRL at interest accruing at market rates and upon an arms length basis and the proceeds of such loan shall be used by SRL only for the purposes of acquiring or leasing Windfarm Land. 8 UNDERTAKINGS SRL undertakes that: a. it shall use its best endeavors to acquire and/or lease only such land that if suitable for the purposes of use o Windfarm Land and is fit to be transferred to the Customer or such other Person as designated by the Company; b. It shall not in any manner whatsoever impose or seek to impose any onerous term or condition in any agreement for the sale or lease or sub lease of the Windfarm Land with any Customer which may (i) be inconsistent with the terms and conditions as stated in the purchase order for the WTG or such other agreement between the Company and the Customer for the sale of the WTG; or (ii) prevent the customer from entering into such agreement with SRL; (iii) result in the Company being unable to provide "integrated solutions" in wind power generation to such customer; c. It shall not commence or carry on any other bus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mers. The appellants submitted documents evidencing the registry of the land, and also the sale deeds and purchase deeds. The purchase deeds are seen to be executed between the independent sellers and M/s. SRL. Further, the sale deeds are seen to be executed between M/s. SRL and the customers identified by M/s. SEL who (customers) will then set up wind farm projects on such lands. Even though the land to be acquired/obtained on lease has been identified by M/s. SEL, the fact remains that it is M/s. SRL who purchase land or obtain the same on lease. M/s. SEL is nowhere the party in the transactions of sale/purchase/lease. Notwithstanding the Agreement between M/s. SEL and M/s. SRL, the legal transactions which indicate M/s. SRL as the purchasers/seller of land cannot be wished away. The argument of Revenue that the word 'commission' used in the agreement which facilitates the profit of 11% on the total cost of land does not negate the legality of transaction in which SRL is the buyer or the seller i.e. it is M/s. SRL who are purchasing land and selling the same thereafter at a profit which may be fixed by M/s. SEL. Even the facilitation of loans by M/s. SEL to M/s. SRL for purch ..... X X X X Extracts X X X X X X X X Extracts X X X X
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