TMI Blog2021 (10) TMI 1229X X X X Extracts X X X X X X X X Extracts X X X X ..... lant was under a bona fide belief that since it was giving Right to use of car parking space, no tax is payable under the category Construction Services - in the instant case of the Appellant, since the entire demand has been raised by invoking extended period of limitation, the same is set aside. Club Membership Services - HELD THAT:- Since there was no club in existence during the period of dispute, there cannot be any demand raised on the said ground. The Architect s Certificate dated 16/08/2016 is testimony to the stated fact and there is no contrary evidence produced by the department to dispute the same - there are merit in the submission of the Appellant and accordingly the demand under the Membership of Club or Association Services also needs to be set aside. Demand of Service Tax on amounts received after 01/07/2010 for Construction Services rendered upto 30/06/2010 - HELD THAT:- The essential condition for determining the taxability is (i) whether payment made by the buyer to the builder on or after 01/07/2010 and (ii) whether payment made before or after issuance of completion certificate by the competent authority and since in the case of the Appellant t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Trunk Road, Maheshtala, 24 Parganas (South) for which the Appellant was registered with the Service Tax authorities. Based on the Service Tax audit of the Appellant for the period 2008-09 to 2012- 13, it was served with the Show Cause Notice dated 23/10/2013 wherein the issues as stated supra were raised. Hence, the present appeal before the Tribunal. 3. Shri Ankit Kanodia, learned Advocate, appeared on behalf of the appellant assessee. He submitted that as regards the first issue of demand of Service Tax on car parking charges collected by the Appellant from its buyers, it was not a Construction Service as the Appellant was only transferring right to use of the car parking to the buyers and the same cannot be treated as Construction Service. He also submitted agreements for sale and registered deed to show that the same was in the nature of right to use and not Construction Services. He also stated that since the preferential location services had specifically excluded car parking from the definition of such service, then the demand of Service Tax under the Construction of Residential Complex Service head cannot be sustained. He also referred to the decision of the Tribunal w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f services, which is attributable to services provided during the period when such services were not taxable. It is his submission that since it is not disputed that the services were performed prior to 30/06/2010 and the same has also been confirmed by the architect s certificate in this regard, then the question of any Service Tax liability on the same cannot arise and hence the demand is bad in law. He also relied on the following decisions : (a) Amit Metaliks Ltd Versus Commissioner of CGST, Bolpur [2020 (41) G.S.T.L. 325 (Tri. - Kolkata)] (b) Kolla Developers Builders Vs. CCCE ST, Hyderabad-II Appeal No. ST/1915/2010, Final Order No. A/31197/2018 dated 27/08/2018 (c) Commissioner OF C. EX. S.T., Banglore-I Versus Keerthi Estates Pvt. Ltd. 2019 (26) G.S.T.L. 227 (Tri. - Bang.) 3.3 The learned Advocate also vehemently argued on the grounds of limitation as there was no suppression involved in the present case and that the department had mechanically alleged suppression without any substantive evidence in this regard. 4. Shri S.S.Chattopadhyay, learned Authorized Representative for the Respondent Revenue, while supporting the impugned order passed by the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parate area from flats sold by the appellant, there can be bona fide belief on the part of the assessee that such parking charges are not includible in the value of the services falling under Residential Complex Construction Services . There is also no positive evidence indicating any mala fide on part of the appellant. Accordingly, we set aside the order on limitation and allow the appeal on the said ground Thus, in the instant case of the Appellant, since the entire demand has been raised by invoking extended period of limitation, the same is set aside. 6.2 Next, as regards the demand of Service Tax on Club Membership Services , we find that since there was no club in existence during the period of dispute, there cannot be any demand raised on the said ground. The Architect s Certificate dated 16/08/2016 is testimony to the above fact and there is no contrary evidence produced by the department to dispute the same. Also, post the judgment of the Hon ble Supreme Court in Calcutta Club case (supra), it is a settled law that there cannot be any Service Tax charged on services between club and its members as the same tantamounts to self service. Hence, we find merit in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, and therefore, the same cannot be made applicable to the event that as concluded before the introduction of the new levy. This issue has been decided in case of CCE C v. Schott Glass India Private Limited [2009 (14) S.T.R. 146 (Guj.) and wherein paragraph 4 has held as under; 4. The Service Tax, which has been imposed by way of Finance Act, 1994 (the Act), levies Service Tax as provided in Section 64(3) of the Act to all taxable services provided on or after commencement of Chapter 97 (sic) (Chapter V) of the Act. Thus, the taxable event is providing all taxable services which has been defined by Section 65(105) of the Act. Similarly, the Rules, which have been incorporated as Chapter 98 (sic) define person liable for paying the service tax under Rule 2(d) to mean in clause (iv), in relation to any taxable services provided by a person who is a non-resident or is from outside India, does not have any office in India, the person receiving taxable service in India. The taxable event in relation to Service Tax is admittedly the rendering of taxable service. The said taxable services were rendered between November, 2001 and March, 2002. In the circumstances, merely becaus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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