TMI Blog2020 (7) TMI 702X X X X Extracts X X X X X X X X Extracts X X X X ..... ainable both on the principle of mutuality and on the fact of lack of consideration for such services alleged to have been rendered. Appeal allowed - decided in favor of appellant. - Service Tax Appeal No. 25761 of 2013 - Final Order No. 20403 /2020 - Dated:- 29-7-2020 - MR. ANIL CHOUDHARY, JUDICIAL MEMBER AND MR. P. ANJANI KUMAR, TECHNICAL MEMBER For the Appellant : Shri Ashok S. Hasija, Consultant For the Respondent : Shri Rama Holla, Superintendent (AR) ORDER The issue involved in this appeal is whether the appellant company is liable to pay service tax under the category of Business Auxiliary Service(BAS) for the period April 2007 to September 2011 or whether the activity of the appellant is not taxab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arh Expressways Private Limited (v). GMR Jadcherla Expressways Private Limited (vi). GMR Pochanpalli Expressways Private Limited and (vii). GMR Ulunderpet Expressways Private Limited It is further stipulated in the Memorandum of Association that other group companies of GMR can also be associated for receiving the services on mutual cost sharing basis, as per agreeable norms. The right to membership of such company is reserved and the membership of a member-company, is not transferable. 3. Learned counsel for the appellant submits that a Company limited by guarantee is an extensive mode used for organizing professionals, traders etc into an association for general and non-business purpose; the appellant company ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew of the foregoing I hold that the services provided by the assessee to the group members/companies is falling under the activities specified in Para 3 of the SCN and the procurement of goods and services are actually inputs for group members to carry out their business and said services are rightly classifiable under Business Auxiliary Service as defined under Section 65 (105) (zzb) of the Finance Act, 1994. Commissioner refers to such services being provided to the 'group members' and not clients ; it s unclear as to how the Commissioner while on the one hand says that the procurement of goods and services are collectively inputs for group members and on the other classifies the Service under Business Auxiliary Service. 3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f goods and/or service' for the member companies itself tantamount to taxable service, whereas, in terms of the definition of the taxable service it is not the 'procurement and/or service' but only the service 'in relation' to procurement of goods and/or services which are covered under the definition of taxable service; he relies upon Hon'ble Delhi High Court s decision in the case of Home Solution Retail India Ltd. Vs Union of India 2009 (237) ELT 209 (Del).) 3.5 . Learned counsel also submits that the Commissioner confirmed the extended period of limitation on the ground that the appellant had suppressed the facts from the department; it is contrary to the facts on record; the appellant has been in corres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt or that their customers are handled by appellant, in the absence of any evidence to that effect, the specific category within Section 65(19) of Finance Act, 1994 is not sustainable. 6 . The appellant is the developer of properties, and, in accordance with the Maharashtra Ownership of Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963, to collect certain amounts from the owners of the units constructed by the appellant for the operation of common use facilities and to transfer the balance amount to a society of the owners as and when constituted. It is the finding in the impugned order that the appellant renders a service to the owners of the units for which amounts collected is the cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the service provided is not one of health and fitness service . 4. Learned AR for the Revenue relies upon the impugned order. 5. Having considering the rival contentions, we find that the companies have come together to share the resources and there is mutuality of interest of the promoters / member companies. No evidence of any consideration paid by Group Companies for providing of services to the member-companies or GMR group of companies. The only basis for providing of services by the appellant is on cost sharing basis as per the norms or formula laid down by the members of the appellant company. Therefore, find that the show cause notice is not maintainable both on the principle of mutuality and on the fact of lac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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