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TMI Blog2019 (4) TMI 1890X X X X Extracts X X X X X X X X Extracts X X X X ..... h the provisions of Finance Act, 1994 as the lease money collected by the appellant in the form of tentative sale proceeds, transfer and extension fee as well as the rent/ lease rent collected by them was not included in the taxable value for the purpose of payment of service tax during relevant financial years. Accordingly, a show cause notice dated 24.10.2013 was issued to the appellant whereunder service tax amounting to Rs. 26,11,69,783/- have been demanded under the category of renting of immovable property service under Section 73(1) of the Finance Act, 1994 by invoking the extended time proviso of the section. The provisions regarding recovery of interest as per the provisions of section 75 has also been invoked. The penal provisions under Section 76, 77 and 78 of the Finance Act have also been invoked. The matter has been adjudicated vide Order-in-Original No. CHD-CEX-001-Com-21- 2015 dated 19.03.2015 by which an amount of Rs. 10,83,18,601/- has been confirmed under Section 73 of the Finance Act, 1994 along with interest under section 75. Penalty of equal amount has also been imposed under section 78 and penalties under Section 77 of the Finance Act have also been imposed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se is generally collected on monthly basis. It has also been stressed that the demand prior to 01 July, 2012 is also not sustainable as otherwise also the appellant were entitled for the benefit of Notification No. 12/2003 dated 20.6.2003 which exempts so much value of the taxable service, as is equal to the value of goods and material sold by the service provider to the recipient of service. Learned advocate has also stated that otherwise also the issue has legally been settled by this Tribunal in its decision in the case of Greater NOIDA Indl. Development Authority vs. CCE & ST, NOIDA reported under [2015 (38) STR 1062 (Tri-Del)]. The learned advocate has also relied upon the decision of this Tribunal in the case of RIICO Ltd. vs. Commissioner of Central Excise, Jaipur I reported under [2018 (10) GSTL 92 (Tri-Del)]. 4. We have also heard learned Departmental Representative who has generally reiterated the findings as given in the Orderin- Original. 5. After hearing both the sides and on perusal of the record of appeal and the relevant case law cited by the learned advocate, we find that all the issues involved in this appeal have already been settled by decision of this Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent for the purpose of charging of Service Tax for which no valid reasons have been given. Therefore, the Order-in-Original dated 30-4-2013 confirming the Service Tax demand on the premium amount is not correct and to this extent, the Service Tax demand would not be sustainable. 11.2 Thus, as per the amended provisions effective from 1-6-2007, Section 65(105)(zzzz) covers not only the service of renting of immovable property to any other person for use in the course of furtherance of business or commerce but only any other service in relation to such renting. Therefore, the services, which are in connection with the renting of immovable property for business or commerce, would also be taxable under this Section. Therefore, processing charges for application for land allotment on lease basis would also be taxable. However, the services like processing and approval of building plan, map revision, malba charges connected with building of structures on the land allotted on lease basis have no nexus with the renting of immovable property for business or commerce, and as such, the activities in relation to the construction of building on the vacant land allotted on lease basis i.e. t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e even if the leases had been given during the period prior to 1-7-2010. 14.1 In terms of Section 73(1) of Finance Act, 1994, where any tax has not been levied or short paid or erroneously refunded, the central excise officers may within one year from the relevant date, serve notice on the person chargeable with the Service Tax which has not been levied or paid or which has been short levied or short paid or the person to whom such tax has been erroneously refunded requiring him to show case as to why he should not pay the amount specified in the show cause notice. The term, "relevant date" is defined in sub-section (6) of the Section 73. With effect from 28-5-2012, the normal limitation period has been enhanced to 18 months. In terms of proviso to Section 73(1) wherever Service Tax has not been levied or paid or short levied or short paid or erroneously refunded by reason of fraud, any wilful suppression of facts, mis-statement or contravention of any provisions of Chapter V of Finance Act, 1994 or of the Rules made thereunder with intent to evade payment of tax, the notice for recovery of such short levied, short paid or erroneously refunded Service Tax can be made within 5 y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government of Uttar Pradesh for performing statutory functions in accordance with the provisions of U.P. Industrial Area Development Act, 1976 and one of its functions is the allotment of vacant land to various persons for industrial or residential purposes on long term lease basis. In our view, there is merit in the appellant‟s plea that they were under bona fide belief that the allotment of vacant land to various persons on long term lease basis for construction of building for industrial purposes, would not attract Service Tax under Section 65(105)(zzzz). Therefore, in the circumstances of the case, in our view, longer limitation period of 5 years from the relevant date would not be applicable and the Service Tax demand would survive only for the normal period of one year from the relevant date, which would be quantified by the adjudicating authority. For the same reasons, this is also a fit case, where by invoking the Section 80 of the Finance Act, 1994, penalties under Sections 76, 77 and 78 have to be waived and in terms of this section notwithstanding anything contained in the provisions of Section 76, 77 and 78 of the Finance Act, no penalty shall be imposable on t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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