TMI Blog2022 (11) TMI 1279X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;ble Supreme Court in the case of UOI vs. Mahindra Mahindra Limited [ 1995 (3) TMI 88 - SUPREME COURT] held that ordinarily the Court should proceed on the basis that apparent tenor of agreement reflects the real state of affairs. Though it is open to Revenue to allege and prove that apparent is not real. In the present case also, if strictly go through the above agreement, it is nowhere mentioned that appellant is a service provider to some service recipient. As per the agreement, all the parties to co-development agreement have been assigned to their respective jobs and all have performed in favor of the joint venture in which again all the three parties are participants. Therefore, it is clear that the appellant have not provided any service to the joint venture. Time limitation - Suppression of facts - HELD THAT:- The appellant have not carried out activities clandestinely as the same were as per the co-development agreement and was on principal to principal basis. The case was made out on the observation of audit from various records of the appellant and all the transactions were admittedly recorded in the books of accounts. In this fact, the suppression of fact or an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice tax demand, interest and penalties as proposed in the show cause notice were confirmed. Being aggrieved by the said order-in-original the appellant filed the present appeal. 2. Shri Hardik Modh, learned Counsel appearing on behalf of the appellant submits that the appellant is one of the parties to joint venture for development of Pegasus Commercial Complex. He referred to the co-development agreement and submits that as per agreement, the activities was assigned as part of overall work of development of property in the capacity of co-developer. Therefore, there is no service exist among equally placed co-developers in joint venture therefore, no service tax is payable. In this regard he referred to Board Circular No. 151/12/2012-ST dated 10.02.2012, 148/17/2011-ST dated 13.12.2011 and 334/4/2006-TRU dated 28.02.2006 and submits that as per Circulars also the activities of the appellant does not fall under Business Support Service. He also referred to Black‟s Law Dictionary meaning of Joint Venture to submit that as per definition there is commercial objective between all the three developers and the consideration is in the form of distribution of profit. He further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . with the Government departments and follow up with the sanctioning authorities, etc. (C) SIPL established contact with SCPL which is in the line of development and construction since many years and requested to combine with it as co-developers to develop the said land and complete the scheme on the said land. (D) SCPL gave its consent and decided to develop the said land jointly. The parties hereto finalized the terms conditions to which they are desirous of recording into writing by executing this Co-development Agreement being these present:- NOW THIS SUPPLEMENTARY AGREEMENT WITNESSETH AND IT IS HEREBY AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS: 1. The parties of the First Part and Second Part hereto as co-developers have agreed to carry out the joint development of the scheme on the said land by contributing their expertise, financial resources, manpower, etc. 2. The parties hereby specifically agree that this agreement for joint development shall not constitute partnership between the parties hereto and neither shall be agent of any body. 3. The party of the First Part and Third Part hereby assure the Party of the Second Part that the titles of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be as under: Party of the First Part - 75% Party of the Second part - 25% Total: - 100% 13. The parties of the First and Second Part hereto are hereby individually authorized to collect the sale proceeds from prospective purchasers and shall not be obliged to deposit the sale proceeds recovered from the prospective purchasers by them in common pool or joint bank account, if maintained, but retain with them against their own outgoings. 14. Although functional division has been made for the reasons already given and clarified above, the party of the Second Part shall as often a possible visit and observe the progress of the scheme on site, an actively contribute and cooperate in all respects with the party of the First Part in solving all difficulties and hurdles in the implementation the scheme. 5. From the above extract of the agreement it is clear that the appellant is not an agent and providing service to anyone else whereas the appellant (SCPL) is an active party to the joint venture with M/s. Safal Infrastructure Pvt. Limited and M/s. Pegasus Commercial Co-op Society Limited. The consideration is also on the basis of the profit of joint venture. In this fact ..... X X X X Extracts X X X X X X X X Extracts X X X X
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