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TMI Blog2021 (7) TMI 95X X X X Extracts X X X X X X X X Extracts X X X X ..... services but without payment of service tax despite that the constructed property were sold after obtaining completion certificate from the Architect. It is alleged that the certificate was to be obtained from the competent authority which was Indore Municipal Corporation (IMC), Indore instead of Gram Panchayat Chota Bangarda. Based on these observations that a Show Cause Notice bearing No. 2819 dated 24.10.2017 served upon the appellant proposing the recovery of service tax of Rs. 3641231/- and the recovery of interest of Rs. 88,754/- being not paid by the appellant along with the interest at proportionate rate and the appropriate penalties. The said proposal was initially got confirmed vide the Order-in-Original No. 49/2018-19 dated 15.1.2019 has been rejected by Commissioner (Appeals) vide the order under challenge. 3. I have heard Ms. Priyanka Goel, learned Counsel for the appellant and Shri Pradeep Juneja, learned Departmental Representative for the Department. 4. It is submitted on behalf of the appellant that the appellant started constructing residential complex in the year 2010 with the permission dated 15.1.2011 as was received from Gram Panchayat, Chota Bangarda. Afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon and the appeal in hand is accordingly, prayed to be dismissed. 7. After hearing the parties and after perusing the record, I observe and hold as follows. Following three issues need to be settled for adjudication of the present appeal : (1) Whether the completion certificate dated 5.2.2013 received in favour of the residential complex constructed by the appellant from Gram Panchayat, Chota Bangarda is valid certificate or not; (2) Whether the appellant is liable to pay the interest of Rs. 88,754/- on account of late payment of service tax; (3) Whether the Show Cause Notice is barred by time. The appellant had also obtained certificate from the concerned Architect being under bonafide belief that the completion certificate issued by Chartered Engineer/Architect is permissible in addition to the certificate from Gram Panchayat was obtained under the bona fide belief of said Gram Panchayat to be the competent authority in terms of Section 66E(b) of Finance Act. I am of the opinion that benefit cannot be denied to the appellant who has been under bona fide belief and has been obtaining requisite permissions or certificates from the competent authorities. 8. Issue wise fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Authority. I also find that the definition of 'competent authority' in Section 65(105)(zzq) & (zzzh) ceased to exist after omission of Section 65 of Finance Act, 1994 w.e.f. 1.7.2012. So the definition of "competent authority" as prescribed in Section 66E of Finance Act, 1994 has to be followed." 11. Once the above admissions are read along with the aforesaid section it becomes clear that though on the date when completion certificate was issued in favour of the appellant by the Gram Panchayat, Chotta Bangarda, the impugned area, the jurisdiction thereof got vested with IMC, Indore. But once the said notification got quashed in February, 2014 the jurisdiction stands revested in Gram Panchayat itself. Thus the Show Cause Notice of October, 2017 should not have been issued. Except for 17 days i.e. with effect from 5.2.2013 to 22.2.2013 Gram Panchayat, Chota Bangarda was not the competent authority in terms of Section 66E (b) of the Finance Act. Rather the said Gram Panchayat was the, competent authority when it issued the permission to construct the said residential complex. The competence of said Gram Panchyat got retained from the order of High Court of February, 2014. Hence at th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the point of taxation shall be the date of receipt of each such advance." 13. Perusal of this provision, make it abundantly clear that the point of taxation will either be the: (a) The time when the invoices issued; or (b) When invoices not received, the date of completion of provision of service; or (c) If advance is received then the date when such advance amount is received. It is observed that the appellant herein has issued the receipt of installment as and when the installment was received no invoice was ever issued by the appellant. The sale deed is a legal documents of the title of property hence cannot be termed as invoice. Also the date of completion of service will be the date when possession of the property is given to the purchaser which shall only be after receipt of sale consideration and the date of receiving final installment, therefore, later will be the relevant date for determination of point of taxation. The calculation placed on record reveals that the service tax liability has been discharged as and when the payment of requisite installment has been received by the appellant. Above all, there is no evidence produced by the Department to the contrar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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