TMI Blog2018 (10) TMI 1207X X X X Extracts X X X X X X X X Extracts X X X X ..... er, against proposed demand of ₹ 1,28,54,902/- in the show cause notice, the demand confirmed in the impugned order is ₹ 94,57,303/-. Thus it appears that the show cause notice was issued without due diligence. Balance demand of ₹ 81,92,240/- - the appellant have before issue of SCN deposited ₹ 76,88,206/- out of the said amount and before adjudication have deposited the balance amount of ₹ 5,05,000/- - Penalty - Held that:- No penalty was impossible on the appellant under Sections 70, 77 and 78 of the Act. The appellant is not liable to pay any tax over and above amount of ₹ 81,92,240/- and accordingly, appellant is entitled to refund of the amount paid over and above the said amount and also refun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , receipt made in subsequent year and consequentially confirmed the demand of ₹ 94,57,303/-. After adjusting the amount already paid as ₹ 81,93,206/-, the net demand remains to be ₹ 12,64,097/-. The demand of differential amount is arising mainly on account of following- (a) On amount of ₹ 2,85,35,980/- received as refundable loan/advance received. (b) On amount of ₹ 79,55,477/- shown in rough register but neither shown in rough ledger nor in books of account. (c) On amount of ₹ 24,92,488/- on the basis of rough ledger. 3. Being aggrieved the appellant is before this Tribunal against the impugned order passed by the learned Commissioner. 4. Learned counsel for the appellant Shri Kapil Vaish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (ii) No flats had been allotted against the amount received as loan and disclosed as project refundable in Balance Sheet. (iii) The appellant s Chartered Accountant has certified that the said amount of ₹ 2.85 crore have been received as loan and they have not been received towards sale of flats. D Service Tax cannot be demanded on amount of ₹ 7955477/- on the basis of rough register service tax involved ₹ 2.05 lac (i) The learned Commissioner in para 40(i) has confirmed the demand. (iii) As already mentioned, there is no evidence of receipt of said amount of ₹ 79.5 lac, particularly when no verification has been done from the customers who are said to have made the said payments nor the author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 12,64,097/- is concerned, we find that such demand has been raised on the basis of some rough note books seized from the premises of the appellant and the author of said note book have not been identified. Further we find that there is no enquiry made by Revenue regarding from the person who are named therein if they have paid such amounts to the appellant assessed as mentioned therein. The appellant have assailed the allegations in the show cause notice by producing their books of accounts duly audited alongwith certificate of their Chartered Accountant. We further find that such facts have been recorded in the impugned order by the learned Commissioner in Para 40(i) where in it is recorded in the following words:- I have obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce was extended. The Hon ble High Court held that it was levy ultra vires as there was no statutory mechanism to ascertain the value of the taxable service in the complex transaction and Hon ble High Court observed as follows- 37. Undisputedly, the contract between an buyer and a builder/promoter/developer in development and sale of a complex is a composite one. The arrangement between the buyer and the developer is not for procurement of services simplicitor. As noticed hereinbefore, an agreement between a flat buyer and a builder/developer of a complex who is developing the complex for sale is, essentially, one of purchase and sale of developed property. But, by a legislative fiction, such agreements, which have been entered into p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvices, the Central government has made Service Tax (Determination of Value) Rules, 2006 (hereafter the Rules ). However none of the rules provides for any machinery for ascertaining the value of services involved in relation to construction of complex. 45. Whilst Rule 2A of the Rules provides for mechanism to ascertain the value of services in a composite works contract involving services and goods, the said Rule does not cater to determination of value of services in case of a composite contract which also involves sale of land. The gross consideration charged by a builder/promoter of a project from a buyer would not only include an element of goods and services but also the value of undivided share of land which would be acquired ..... X X X X Extracts X X X X X X X X Extracts X X X X
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