Page 80 - GSTL_30th April 2020_Vol 35_Part 5

566 GST LAW TIMES [ Vol. 35
excluded from the definition of taxable service. It was submitted that Rule 5 of
POTR, 2011, is applicable for payment of tax in case of new services which are
taxed for first time. As the services in question was introduced in year 2007 itself,
and hence Rule 5 was not to be applied.
13. Even otherwise, it was stated by Learned Authorised Representa-
tive that the sub-category of renting of vacant land solely for mining purposes,
became taxable w.e.f. 1-7-2012 (with introduction of negative list), then also Rule
5 was not applicable as the said transaction has materialised in December, 2012
only. He, therefore, submitted that the POTR, which is applicable in this case, is
Rule 3 only, which is the date of making adjustment in the account, by reflecting
such transaction as “surface right”, which is 13-12-2012. This date is required to
be treated as date of invoice, and therefore point of taxation would be 13-12-2012.
Learned Authorised Representative placed reliance on following decisions :
(i) Greater Noida Industrial Dev. Authority v. Commr. of Cus. and C. Ex. -
2015 (40) S.T.R. 95 (All.)
(ii) RIICO v. Commissioner of C. Ex., Jaipur - 2018 (10) G.S.T.L. 92 (Tri. -
Del.).
14. For rendition of service, as claimed by the Learned Authorised Rep-
resentative, the crucial date will be December, 2012 only and for which the reli-
ance was placed on the following decisions :
(i) Vistar Construction (P) Ltd. v. UOI - 2013 (31) S.T.R. 129 (Del.)
(ii) CST v. Consulting Engineering Services (I) Pvt. Ltd. - 2013 (30) S.T.R.
586 (Del.)
(iii) CCE, Aurangabad v. Chate Coaching (P) Ltd. - 2016 (46) S.T.R. 674
(Tri. - Mum.)
(iv) CCE, Allahabad v. Krishna Coaching Institute - 2009 (14) S.T.R. 18
(Tri. - Del.)
(v) CCE, Allahabad v. Ashok Singh Academy - 2010 (17) S.T.R. 363
(Tri. - Del.).
15. We have gone through the submissions made by both the sides and
also considered the appeal record. We have also considered the written submis-
sion made by both the sides subsequent to the hearing.
16. The issue to be decided in this case is as to, -
(i) Whether the acquisition of land made by the appellant for setting
up of the thermal power plant by the JV company as per the agree-
ment entered with RWPL is to be considered as service after the de-
nial of permission of transfer of land, acquired by the JV company?
(ii) Whether the 51% equity stake which has been granted to the appel-
lant by the Implementation Agreement, in the JV company, could be
treated as ‘Business Auxiliary Service’? and
(iii) Whether deployment of officers in the JV company, would amount
to rendition of service under the category of ‘Business Auxiliary
Service’?
17. As far as the acquisition of land by the appellant is concerned, it is
on record that the same has been procured by the GoR and assigned to the appel-
lant. The land was acquired from Khatedari land of GoR or the land belonging to
the cultivator. In this regard, it will be worthwhile to refer to the provision under
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