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TMI Blog2025 (5) TMI 773X X X X Extracts X X X X X X X X Extracts X X X X ..... ob Receipts" for the F.Y. 2011-12 & 2013-14 in the capacity of "Contractor" for services provided to Builder/Developer/Promoter under "Construction of Complex Service" * Short payment of service tax on Rent received. * Non-payment of service tax on amount received for Forfeiture of Guest House booking amount under the head "Mandap keeper service" * Non-payment of service tax on an amount received under the head "Commission" in their Ledger account for the F.Y. 2010-11 & 2013-14 is taxable under "Business Auxiliary Service" (BAS) * Short payment of service tax under the head "Legal Services" under reverse charge mechanism (RCM). 2. Now, we take up the first issue of demand of service tax of Rs.92,74,325/- under the head "Construction of Residential Complex" on the amount of advances received from prospective buyers. It has been alleged that the Party has failed to correctly show the amount received as advances in their ST-3 Returns filed for the relevant period, as the receipts as per the Books of Accounts were more than that shown in ST-3 Returns. The Revenue has further contended that the Reconciliation Statement submitted by the Party in its defence reply is beyond its u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matically fall under the Explanation which has not been provided any retrospective effect by the Statute. Since the service of construction to prospective buyers only becomes taxable after 01.07.2010, then it stands to reason that only the portion of construction completed after such date would become taxable under service tax regime. 5. We do find any cogent reasoning in the Revenue"s argument that tax would be payable on the entire amount received for the construction of building irrespective of the fact that a portion or whole of such construction service was completed before the advent of its taxability. Additionally, the Adjudicating Authority has contended that he was unable to make any sense of the reconciliation statement provided by the Appellant. We have observed that such reconciliation while a little obtrude is still perfectly understandable and even if there was any confusion, the Adjudicating Authority could have demanded a clear explanation instead of confirming the demand directly. 6. Further, we have perused the "Completion Certificates" provided by the Appellants with respect to the completed and on-going projects in the relevant period, which in our view, serve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount of Rs.9,84,09,499/- received from M/s Jaypee in F.Y. 2011-12, the Appellant contends that such amount received against R/A Bill No.38 pertains to work which was completed back in 2004-05 and as such would not be taxable under Service tax regime. 10. It is an undisputed fact that Works Contract Services were not taxable in F.Y. 2004-05. Hence, the only issue is whether such amount received in F.Y. 2011-12 pertains to work completed in 2004-05. In this regard, various correspondences between the Appellant and M/s Jaypee have been brought on record, along with the copy of Agreement, WCT deduction certificates and a copy of AS-9 Accounting principles. The Adjudicating Authority has observed that since the Appellant had charged service tax in R/A Bill No.1, its contention that the R/A bill No.38 pertains to F.Y. 2004-05 is not tenable. Additionally, it has been observed that the correspondences provided by the Appellant are general in nature and are not sufficient evidence to prove that the amount received was with respect to work done in F.Y. 2004-05. 11. On perusal of the records, we find ourselves in disagreement with the Adjudicating Authority"s view. Firstly, it is eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Booking of Guest House which was forfeited on cancellation of transaction. The Revenue has proposed demand of service tax on such amount under the head of Business Auxiliary Service BAS in the SCN. Subsequently, the Adjudicating Authority had confirmed the demand in the impugned Order under the head of "Mandap keeper service". The Appellant has in its appeal relied on various case laws to contend that demand cannot be confirmed in a category different from the category under which demand has been proposed in the SCN as the same amounts to traversing beyond the allegations made in the SCN which is impermissible under law. The Tribunal"s decisions in the cases of Marubeni India Pvt. Ltd. Vs. CST [2016-TIOL-2142-CESTAT-DEL] and J. H. Mirza Vs. CCE [2016-TIOL-2181-CESTAT-MUM] have been relied upon by the Appellant in this regard. 14. On a perusal of the above two judgements, it becomes evident that when an allegation of taxability has been made in the SCN under one head, the same cannot be classified under a different head in the impugned Order. In light of the same, the present demand of service tax on amount of Rs.2,25,000/- under the head of "Mandap keeper Service" is beyond the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Department has the power to narrow the scope of the exemption. In light of the same, since Notification No.25/2012 does not provide for any requirement of an AMFI/ARN No., the sole contention of Department is unsustainable. Consequently, the commission received for providing services in capacity of a mutual fund agent to an asset management company is exempt under Service tax regime. 16. We observe that nowhere in the Exemption Notification there is any requirement of an AMFI or ARN No. on part of the taxpayer. It is a settled legal position that the burden of proof in case of exemption notification is on the taxpayer and such notification must be construed strictly. However, strict interpretation must not be confused with addition of requirements not mentioned in the Notification. Benefit of exemption Notification cannot be denied on the basis of a condition which has not been explicitly mentioned in the Notification itself. Presently, the Appellant had received the concerned amount as commission from M/s Zealous Financial Services Pvt. Ltd. from mutual fund transactions. Consequently, it appears that Appellant has acted in the capacity of a mutual fund agent to an Asset manag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ransaction falls under the taxable service is on the Revenue. 19. Since the allegation of taxability of a transaction is made by the Revenue in the first place, according to Sections 101 & 103 of Evidence Act, 1872 (corresponding to Sections 104 & 106 of Bhartitya Sakhshya Adhiniyam, 2024); burden of proving the same shall lie on the Revenue. Especially for the period before the Negative list regime, where only those transactions which were specifically mentioned in the Finance Act were taxable, the burden of proving the same would remain on the Revenue. We observe that the throughout the impugned Order, the Adjudicating Authority has denied the Appellant"s contentions and confirmed demand based on an alleged lack of evidence. Irrespective of the un-sustainability of the demand as discusses in the above paragraphs, we find that the burden of proving the taxability was on the Revenue and the same has not been discharged. No documentary evidence has been brought on record by the Revenue to support its allegations. 20. In view of the same, we are of the view that the entire demand confirmed in the impugned Order based on unsubstantiated allegations by contending lack of evidence on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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