TMI Blog2022 (12) TMI 602X X X X Extracts X X X X X X X X Extracts X X X X ..... fit, which will not get covered under the category of real estate agent services. We agree with the learned advocate that the services being provided by the appellant were not Real Estate Agent' service so as to confirm service tax on the same. - SERVICE TAX Appeal No. 348 of 2012 - FINAL ORDER NO. A/12177/2022 - Dated:- 12-12-2022 - MR. RAMESH NAIR, MEMBER (JUDICIAL) AND MR. RAJU, MEMBER (TECHNICAL) Shri Bishan R. Shah, Chartered Accountant for the Appellant Shri G. Kirupanandan, Superintendent (AR) for the Revenue. ORDER This appeal is directed against Order-In-Appeal No. 105 to 106/2012-(STC)/K.ANPAZHAKAN/ Commr.(A)/Ahd. Dated 23.03.2012 passed by the Commissioner (Appeals), Ahmedabad. 2. The relevant facts that arise for consideration are that intelligence gathered revealed that appellant is engaged in the business of providing real estate agent services for which they were not registered with service tax department and not paying service tax. Accordingly a search was carried out at the premises of appellant and statement of Shri Jayesh Talakshibhai Kotak, Director of appellant‟s company was recorded. During the course of scrutiny of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t but it is a developer services. 4. He also submits that as per Circular No. 108/02/2009-ST dated 29.01.2009 and Circular No. 151/2/2012-ST dated 10.02/2012, the service provided by the Appellant till the execution of the sale deed would be in the nature of self service and would not attract service tax. He placed reliance on the following decisions. (i) Commissioner of Service tax vs. Shrinandnagar-IV Co. Op. Housing Society Ltd. 2011-23-STR 439 (Guj.) (ii) Magus Construction Pvt. Ltd. vs. Union of India WP(C)/2615/06 dated 15.05.2008. 5. He further submits that Show cause Notice is issued on 08.02.2010 by the department whereas the issue involved is in knowledge of department since 09.01.2007. The period involved in SCN is 2007-08. Remaining amount of tax is also paid by the appellant on 17.03.2008 and 17.04.2008. It is evident that the activities undertaken by the appellant are in the knowledge of department. As per the provisions of Section 73(1), the SCN is required to be issued within one year from the knowledge to the department. In the present matter SCN was issued after completion of more than 2 years. Hence, SCN is time barred. 6. Without prejudice, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate; Section 65(105)(v) defines taxable service in relation to Real Estate Agent' as under : taxable service means any service provided or to be provided to any person, by a real estate agent in relation to real estate and the term service provider shall be construed accordingly . The Revenue contended that the Appellant received development charges @2.5% of the construction cost from land owners, was in relation to services provided as Real Estate Agent‟s and accordingly liable to service tax. However, we find that to levy service tax first of all the provider of service should be a real estate agent and second while acting as agent the person concerned should have provided service in relation to sale, purchase, leasing or renting of real estate. There is nothing in the show cause notice or the relied upon documents to show that the Appellant acted in a capacity of real estate agent whereas agreement show that appellant acted as developer of projects. From the plain reading of above said definition of real estate agent and real estate consultant, it is seen that to get covered under the said definition, it has to be brought on record that the person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke contracts, agreements etc. entered by the service provider with their customers. A service will not become a particular service merely on the acceptance of the service provider. 14. We find that identical issue, in the case of Safal Construction Pvt. Limited (Appeal No. ST/445/2012) has been decided by this Tribunal vide order No.A/11755/ 2022 dated 28.11.2022. The relevant portion of the order is reproduced below:- 4. We have carefully considered the submissions made by both the sides and perused the record. We find that in the present case the Revenue has demanded service tax on the consideration received by the appellant against the co-development agreement between the appellant, M/s. Safal Infrastructure Pvt. Limited (now known as M/s. Safal Realty Pvt. Limited) and M/s. Pegasus Commercial Co-op Society Limited. The department contended that the appellant s activity is the Support of Business of the joint venture therefore, the appellant have provided Business Support Service. In this regard it is necessary to go through the relevant clauses of the co-development agreement dated 01.11.2006:- (A) SIPL has entered into an Agreement obtaining exclusive rights of devel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Party of the First Part will be done by the party of the Second part. 6. To facilitate early implementation of the scheme and for mutual convenience, functional division between the parties hereto are made and agreed as under- 6.2 FUNCTIONS OF THE PARTY OF THE SECOND PART: (SCPL) A. It will obtain all licenses, approvals, permissions, consents, no objections certificates, etc, as may be necessary or required according to the laws legally applicable in connection with undertaking and implementing the proposed scheme. B. It will look after and take care of all the legal procedural aspects including getting the plans modified, to meet the requirements laid down by the competent authorities, etc. C. If required it will get amended plans for the said land for joint development of the scheme through Architects, Structural engineers or other consultants and will do necessary follow up work for getting the plans sanctioned. D. It will look after the activities of advertisements and marketing of the scheme. E. Reference is also drawn to para '5' herein above regarding the residuary work to be handled by the party of the Second Part. It has been specifically ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 6. Learned Counsel also strongly argued that the demand is time-barred. In this regard we find that 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 any malafide to evade payment of service tax is not established. Therefore, in our considered view, demand of service tax is hit by limitation also. 7. As per our above discussion and findings, the impugned order is not sustainable hence, the same is set-aside to the extent it confi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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