TMI Blog2019 (9) TMI 1529X X X X Extracts X X X X X X X X Extracts X X X X ..... od w.e.f. December, 2009 to March, 2010 and from April 2010 to June, 2010 respectively, which means that the period in issue is before July, 2010. The entire demand of transfer charges as demanded under real estate agent services before July, 2010 has already been set aside by this Tribunal, the question of adjustment of the refund of an amount as was deposited at the time of filing the said appeal for the demand of the said period is apparently not sustainable. The Commissioner (Appeals) has relied upon the fact that the appeal was partially allowed but has failed to appreciate that while being partially allowed, it is the amount in question i.e the transfer charges that too for the period before July, 2010 that the said demand was set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... For appeal No. 50133, the amount of ₹ 1,29,15,392/- as was found to have been recovered by the appellants from their customers during the period from April 2010 to March, 2011 and for appeal No.50134, the amount of ₹ 59,69,151/- was noticed to have been recovered by the appellant on account of transfer charges from their customers during the period from December, 2009 to March, 2010. Vide two separate show cause notices bearing No.1369 dated 12.08.2011 and 1315 dated 30th March, 2011 respectively, that the Service Tax amount of ₹ 13,30,285/- and ₹ 6,14,824/- respectively was proposed to be recovered from the appellants alongwith the appropriate interest and the proportionate penalties. Both these show cause notices ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted land from one allottee to the other qua which the appellant charges an amount as transfer fee from the allottees. The refund in the present case are the amount as were paid by the appellant as mandatory pre-deposits in the appeal filed against the respective Order-in-Appeals which is No.29/2/2012 in Appeal No.50133 and Order in Appeal No.193-196 dated 14.06.2016 in Appeal No.50134. It is mentioned that vide the final order No.53210-53278 dated 12.05.2017, this Tribunal has set aside the demand as far as the transfer charges thereof are concerned, that too, when those charges were demanded under the tax category of real estate agent services. It is impressed upon that refund amount has therefore been wrongly made adjustable. The demand i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me of filing the appeals against the order confirming impugned demands against him. Those orders were challenged before this Tribunal. It is observed that several demands were under consideration before this Tribunal in the said appeal as follows:- Sl. Charges received by the appellant Period Category under which service tax confirmed 1. Economic Rent 01/07/2010 31/01/15 Renting of Immovable Property service 2. Development charges/value of land allotted/ premium 01/07/2010 31/01/15 Renting of Immovable Proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... served as follows: We note that the said charges cannot be subjected to service tax liability under the category of real estate agent service. Section 65 (88) states that real estate agent means a person who is engaged in rendering any service in relation to sale, purchase, leasing or renting, of real agent and includes a real estate consultant. Section 65 (105) (v) defines taxable service, as to any person by real estate agent in relation to real estate. We note that in the present case, the appellants are collecting transfer charges for permitting the transfer of allotted land from one person to another. The appellants are not acting as a agent in connection with leasing of the said land. They are the custodian of the land and they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... services. 10. Coming to the impugned Order-in-Original, I observe that the demand for which the sanctioned refund has been adjusted is qua the transfer charges, which were demanded for the period w.e.f. December, 2009 to March, 2010 and from April 2010 to June, 2010 respectively, which means that the period in issue is before July, 2010. As already observed above, the entire demand of transfer charges as demanded under real estate agent services before July, 2010 has already been set aside by this Tribunal, the question of adjustment of the refund of an amount as was deposited at the time of filing the said appeal for the demand of the said period is apparently not sustainable. 10.1 In para 7.2 of the order under challenge, the Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
