TMI Blog2023 (3) TMI 300X X X X Extracts X X X X X X X X Extracts X X X X ..... s in the lands owned by the petitioner. This Court must opine that, if it cannot be disputed that mere transfer of title in immovable properties either by way of sale or gift or in any other manner would not amount to a taxable service, for a complete adjudication of the petitioner s liability, not just to pay appropriate service tax but also interest and penalty, the first respondent should have examined the aforesaid transactions separately and decided the petitioner s liability; if for any reason, the petitioner s bouquet of transactions is to be considered as inseparable and a composite transaction, and hence subject to service tax, there must be justifiable reasoning for the same. On a perusal of the first respondent s reasoning, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... records that the petitioner, who is engaged in the business of real estate development, has filed Income tax returns for the Assessment Years 2014-15 to 2016-17 declaring a gross total income of Rs.116,30,89,256/- [covering the tax period] and has offered tax accordingly. However, for service tax the petitioner filed Nil returns in ST-3 declaring that there was no taxable service. Upon receipt of information of income tax returns filed by the petitioner for the taxable period from Central Board of Direct Taxes [CBDT], Government of India, the petitioner is issued with Show Cause Notice dated 30.12.2020 to show cause why its activities should not be construed as service as contemplated under Section 65B[44] of the Finance Act and the ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respective lands for development of plots and has also purchased lands and transferred plots therein to the members of RBEHWS. The petitioner has entered into these multiple transactions with RBEHWS, the land owners/the members of RBEHWS in performance of the covenants under the Memorandum of Understanding concluded with the RBEHWS. Though these transactions could generally be described as a bouquet of services, each of the transaction is different and these transactions cannot be combined to opine that the petitioner has rendered taxable services and there is mis-declaration in filing Nil ST-3 returns. 5. Sri. Pradyumna G H further submits that it is in this context that the petitioner has specifically contended that the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the land owners and the plot purchasers are separate transactions and therefore, the impugned Order-in-original is without jurisdiction. 7. The first respondent s opinion that the petitioner s transactions emanating from the Memorandum of Understanding concluded with RBEHWS are taxable services is premised in the following reasoning: 23. ...................................... From this it is clear that, the activity should constitute merely transfer of title, goods or immovable property etc. thus the transaction shall be out of Service Tax net only if the activities exclusively dealing with transfer of title in goods or immovable property. If the transaction is coupled with another activity/ies then this conclusion cannot be applied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eceived by the RBEHWS was for development of land and conversion into inhabitable plots of land on which the Members can construct their houses. By virtue of the MoU, the noticee was never the actual owner of the land. Further, the activity of the noticee is neither covered under negative list [Section 66D of the Act] nor it is exempted under the exemption Notification No.25/2012-ST. It is seen that, the transaction undertaken by M/s. Kishan Enterprises does not involve mere transfer of title in land.................. 8. It is obvious from this reasoning that the first respondent has not examined the petitioner s transactions with RBEHWS, with the land owners who have offered their respective lands for joint development and with the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
