TMI Blog2023 (5) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... and re-seller of land cannot be treated as Real Estate Agent for charging service tax under the said category. Reliance can be placed in the case of PREMIUM REAL ESTATE DEVELOPERS, RAJAT YADAV VERSUS C.S.T. -SERVICE TAX DELHI [ 2018 (11) TMI 1472 - CESTAT NEW DELHI] where it was held that since the specific remuneration has not been fixed in the deal for acquisition of the land, both the parties have worked more as a partner in the deal rather than as an agent and the principle, therefore the taxable value itself has not acquired finality in this case - In the identical nature of transaction, it was held that assessee cannot be charged with service tax under Real Estate Agent . Following the said decision of this Tribunal, in the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case as the appellant purchase land at x price and the same is sold to M/s. Sahara India Commercial Corporation Limited at x+1 price. The profit or lose is on the account of appellant only. Therefore, in these facts it cannot be said that appellant is acting as Real Estate Agent. He placed reliance on the following judgments:- (a) Premium Real Estate Developers vs. CST, Delhi 2019 (22) GSTL 373 (Tri. Del.) (b) DLF Commercial Projects Corporations vs. CST, Gurugram 2019 (27) GSTL 712 (Tri. Chan.) 3. Shri Rajesh K Agarwal, learned Superintendent (AR) appearing on behalf of the Revenue reiterates the findings of the impugned order. 4. We have carefully considered the submissions made by both the sides and perused the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he seller, entered into agreement with the seller and obtained power of attorney, in their favour. Thereafter the appellant transferred the land in favour of Sahara India. Thus we find that the transaction is one of trading in land. In such transactions the appellant could either incur a loss or have a surplus (profit). 28. From the perusal of Memorandum of Understanding (MoU) between the appellant and M/s. Sahara India Ltd. It is very obvious that MoU is not only for providing purely service for acquisition of the land but involves many other function such as verification of the title deeds of the persons from whom the lands are to be acquired and obtaining necessary rights for development of the land from the Competent Authority. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reported in 2015 (40) S.T.R. 973 it was held that mere money flow from one person to another cannot be considered as a consideration for a service. The relevant observations of the Tribunal in this regard are extracted below : 11. ...Consideration is, undoubtedly, an essential ingredient of all economic transactions and it is certainly consideration that forms the basis for computation of service tax. However, existence of consideration cannot be presumed in every money flow. ... The factual matrix of the existence of a monetary flow combined with convergence of two entities for such flow cannot be moulded by tax authorities into a taxable event without identifying the specific activity that links the provider to the recipient. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed more as a partner in the deal rather than as an agent and the principle, therefore we are of view that taxable value itself has not acquired finality in this case. 30. It is also seen that some of the MoUs were not fully executed at the time of the issue of the show cause notice for example, in the case of MoU dated 15-11-2003 entered between Sahara India Ltd. and the appellant, the agreement is for provisioning of 100 acres of land at Village Rora, Distt. Lalitpur, U.P. and for this purpose an amount of Rs. 6,75,00,000/- have been remitted for land cost and an amount of Rs. 1,66,50,000/- have been remitted for the purpose of stamp duty and registration. Thus, a total amount of Rs. 8,41,50,000/- have been remitted to the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f account maintained by the appellant. Further there is no suppression of information from the revenue. Accordingly, we hold that the extended period of limitation is not applicable. 33. Consequently, we allow the appeals and set aside the impugned order. The appellant shall be entitled to consequential benefits, in accordance with law. 5. In the above decision, in the identical nature of transaction, it was held that assessee cannot be charged with service tax under Real Estate Agent . Following the said decision of this Tribunal, we are of the view that in the facts of present case the appellant s activity does not fall under the category of Real Estate Agent Service, hence service tax demand under the said head cannot be sust ..... X X X X Extracts X X X X X X X X Extracts X X X X
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