Customs, Excise & Service Tax Appellate Tribunal, Delhi: In appeals filed against the orders passed by Commissioner (Appeals), CGST, the two-member Bench of Binu Tamta (Judicial Member) and P.V. Subba Rao (Technical Member) allowed the appeals and held that damages received for settlement of dispute of an agreement to sell, did not amount to a ‘Declared Service’ under Section 66-E(e) of the Finance Act, 1994 (‘Finance Act’).
Background:
The appellants were registered with service tax department for providing services of renting immovable property service and have been paying service tax on the rental income. On 17-7-1987, landowners signed agreements with the appellants to sell land. The appellants also paid earnest money to the sellers. Thereafter, landowners sold land to other people. The appellants filed suit and later settled the matter with the landowners and were paid settlement amount of Rs. 4.5 crores each.
The Revenue-respondent submitted that the amount received by the appellants was liable to service tax under Section 66-E(e) of the Finance Act. Thereafter, Show Cause Notices were issued to the appellants demanding service tax. The Proposal in the Show Cause Notices were confirmed by the Joint Commissioner in his Orders in Original which decisions were upheld in the orders, challenged in these three appeals.
Analysis, Law and Decision:
The Tribunal stated that as per Section 66 of the Finance Act, service tax was payable on taxable services rendered, which were listed in various clauses of Section 65(105) of the Finance Act. Thereafter, significant changes were made to the Finance Act in 2012 and all services except those in the negative list and especially those which were ‘Declared Services’ became exigible to service tax. Service tax had to be certainly paid on the ‘Declared Services’ under Section 66-E of the Finance Act.
The definition of ‘Service’ in accordance with Section 65-B(44) of the Finance Act had three parts, the main part, an inclusion part and an exclusion part. The main part of the definition says service meant any activity carried out by a person for another for consideration. This definition was enlarged by the inclusion part of the definition ‘and includes declared services’. Therefore, if something was a Declared Service, even if it did not fall within the scope of the main part of the definition, it would still be ‘service’. The exclusion part of the definition then narrowed the scope of the term by excluding certain services.
The Tribunal while looking at the scope of ‘Declared Services’ under Section 66-E of the Finance Act, noted that Clause (e) read as ‘agreeing to the obligation to refrain from an act, or to tolerate an act or a situation, or to do an act.’ The Tribunal noted that memorandum of settlement was signed by the appellants with the landowners and they received an amount for settlement. The Tribunal held that the settlement was not an agreement by itself but was only settlement of the dispute which had arisen out of an earlier agreement. The amount received by the appellants was only damages for reneging on the agreement to sell and clearly not an agreement to tolerate any act or situation. The Tribunal further held that it was beyond the scope of Section 66-E(e) of the Finance Act and was not a Declared Service and the demand of service tax on appellants could not be sustained. The appeals were allowed and the impugned orders were set aside.
[Ajay Kumar Sood v. Commr. (CGST), Service Tax Appeal No. 51127 of 2020, decided on: 1-9-2025]
Advocates who appeared in this case:
For Appellant (s): A.K. Batra and Sakshi Khanna, Chartered Accountants
For Respondent(s): Rajeev Kapoor and Suresh Nandanwar, Authorised Representative
