TMI Blog2018 (2) TMI 1024X X X X Extracts X X X X X X X X Extracts X X X X ..... s is regarding the interpretation of the provisions of Section 65(105). Hence no penalty is required to be discharged but the interest liability on the said amount of ₹ 1.08 lakhs needs to be discharged by the main appellant - interest upheld - penalty set aside. Appeal allowed in part. - ST/30473/2016-DB, ST/30369/2016-DB - Final Order No. A/ 31882-31883 / 2017 - Dated:- 14-11-2017 - Mr. M.V. Ravindran, Member (Judicial) And Mr. Madhu Mohan Damodhar, Member (Technical) Mr. Rajesh Kumar Mr Venbkata Prasad C.As for the Appellant None for the Respondent ORDER [ Order Per : M. V. Ravindran ] These two appeals are directed against order-in-original No. HYD-EXCUS-004-COM-066-15-16 dated 13/01/2016. 2. Appeal No. ST/30369/2016 is filed by the assessee while Appeal No. 30473/2016 is filed by the Revenue. Since both the appeals are challenging the same order-in-original they are being disposed of by a common order. 3. Relevant facts that arise for consideration after filtering out unnecessary details are the assessee herein is engaged in the business of selling residential houses and apartments from 2010 onwards; has undertaken six projects du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding does not consists of more than 12 residential units ₹ 5,25,349/- Sri Lakshm Srinivasa Residency 14-May-12 Building does not consists of more than 12 residential units ₹ 2,60,042/- Sri Lakshmi Gardens 24-Jul-13 Demand Confirmed ₹ 2,52,515/- Sri Lakshmi Park View 15-Dec-13 Demand Confirmed ₹ 5,89,016/- Total ₹ 21,70,842/- It is noticed from the above tabulated form, the adjudicating authority hs confirmed the demand of approximately ₹ 8.26 lakhs and dropped demand to the extent of ₹ 13.29 lakhs by giving reasoned order. 4. Learned Chartered Accountant appearing for the appellant/assessee submits that they are contesting the issue only on the confirmation of the demands against them of ₹ 8.26 lakhs approximately on the ground that the said demand has been confirmed for the period post December 2012 for which no show-ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ands were dropped by interpreting that the number of units constructed for the agreements entered prior to 01.07.2012 were less than 12 and hence the CBEC circular dated 151/2/2012-ST dated 10.12.2012 is applicable is a wrong finding recorded by the adjudicating authority; the development agreement and general power of attorney were entered much prior to 01.07.2012 and no construction activity could have been started by the said date and the service became taxable with effect from 01.07.2010. It is his subissin that the Revenue s appeal be allowed and the demand of approximately ₹ 13.26 lakhs be confirmed. 6. Learned Chartered Accountant in reply to the Departmental Appeal submitted that it is an accepted fact that the development agreement entered prior to 01.07.2010are not liable for service tax. Hence the dropping of the demands by the adjudicating authority for the period prior to 01.07.2000 is correct and CBEC circular No 151/2/2012 dated 10.02.2012 has specifically clarified the applicability of service tax in the light of various business modalities and had opined that activity of bulk developer prior to 01.07.2010 is not taxable and reads from the said circular ext ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 73(1) of the Finance Act, 1994 for the period 2010-11 to 2012-13 (upto Dec 2012); b) Interest at the appropriate rate as applicable from time to time on the amount demanded at (a) above should not be paid by them under Section 75 of the Finance Act, 1994; c) Penalty should not be imposed on them under Rule Section 77(2) for contravening the provisions of Finance Act, 1994; d) Penalty should not be imposed on them under Section 78 of the Finance Act, 1994 It can be seen from the above reproduced demand raised in the show-cause notice, the said show-cause notice specifically the demand is up to 2012 while the confirmation of demand as is reproduce in paragraph No. 3 includes demand in respect of the development agreement-cum-general power of attorney entered on 24th July 2013 and 15th December 2013. In our considered view, the demand of approximately ₹ 7.48 lakhs which arises in respect of these two agreements entered post December 2012, are unsustainable as there is no demands which have been raised in the show-cause notice. To that extent the assessee/appellants appeal is allowed. 9. As regards the demand of ₹ 1.08 lakhs for the period in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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