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Based on the above discussion, it may be seen that the advance received by DAPL from the licensees for development of common facilities by DAPL, does not sell under any of the taxable service category, therefore, there is no service tax exposure on the instant transaction.

C. Whether refundable deposits received by DAPL from the licensees for overall development of infrastructure facilities are liable for service tax? The refundable deposits received by DAPL for overall development of infrastructure facilities would not attract service tax liabilities as the basic activity of such development would not attract service tax as per the above discussion.

6. The Office of Commissioner Service Tax, vide letter dated 16.05.2011 in response to inquiry made by M/s Aria, opined that Service Tax was payable on License Fees, for Development Right for the purpose of hotel, but the Opinion given was not final. On another representation by M/s Aria on 11.07.2011 an Assistant Commissioner was deputed on the site, who gave his report on 18.11.2011 indicating that site appeared to be located outside IGI Airport and License fee payable to DIAL was liable to tax. In another letter dated 02.12.2011, the Assistant Commissioner (Technical) stated that tax was required to be paid as „Renting of Immovable Property‟ and not as „Airport Service‟. Another representation, as given in SCN, appears to have been made by M/s CAS Associates on 13/12/2011. Another representation was made by the appellant on 17.01.2012 on the same issue, however the Assistant Commissioner in response, vide letter dated 08.02.2012 opined that License Appeal No. ST/52815/2016-DB Fee is taxable as Airport Service. Another Clarification was received from Dy. Commissioner, Service Tax on 02.05.2012 stating that on re-examination of issue the Department is of the view that the license fee is chargeable to service tax as renting of immovable property services. However, the matter has been referred to Board Office for confirmation. But, no confirmation from Board was received by the Appellants. It is claimed by the appellant that the Development Agreement was duly enclosed by M/s Aria Hotels, while seeking clarification from Chairman CBEC, vide letter dated 11.07.2011. Similarly, letter dated 17.07.2012 to Commissioner, Service Tax clearly indicates that Development Agreement dated 04.07.2009 was duly enclosed. Even the notes to clauses of the Development Agreement, in Notes to Clauses No.1.1.39 clearly refers to and defines „Infrastructure Development and Services Agreement‟, even Para 6.1.2 also has a clear reference to „Infrastructure Development and Services Agreement‟. The relevant portion of the said Para 6.1.2 is extracted below:-

- 2009 (13) STR 159 (Tri. Bom): Bajaj Allianz General Insurance Co. Ltd. vs. CCE, Pune.

Appeal No. ST/52815/2016-DB

19. In any case the development of land or common facilities for commercial exploitation and usage by public cannot be termed as Renting of Immovable Property as it is the case of Land Development. Reliance in this regard is placed on 2015 (37) STR 859 (Tri. Del.) as confirmed in 2015 (040) STR J132 (S. C.) in the matter of Alokik Township Corporation Vs. Commissioner of Central Excise and Service Tax, Jaipur-I. (Para 7 and 7.1) :- In which matter construction of sewerage line, laying of underground water supply pipe line or of overhead water tank, construction of dividers and footpath along with plantation were clearly held as activities relating to land development. Number of activities performed in the instant case in relation to land like levelling of land and preliminarily development, boundary wall, construction of road as per norms, landscape garden, construction laying of open and underground drainage, water management, footpaths, construction of tanks, laying of water supply and sewerage pipelines are similar to the activities in the present case. Further the findings of the Ld Commissioner that „ the situation is akin to one where some well known developer of residential land like DLF or HUDA were to charge two amounts for the plots one for the land and the other one for the facilities and amenities like roads, water, sewerage, parks, etc. Obviously, the development charges are part of the charges meant for the land with the specific land use‟. The Ld. Commissioner thereby admits that all development charges are in relation to development of land with common facilities and not for renting. Therefore, based on discussion in the preceding paras, we are of the view that the „Infrastructure development cost‟ as per IDSA is not covered under renting of immovable property and is not chargeable to service tax. a. Second issue on which the appellant has asserted is that extended period of limitation cannot be invoked in the present case and the demand, if any, is time barred. We find that there is nothing brought out on record Appeal No. ST/52815/2016-DB that the appellant had any intent to evade payment of Service Tax on the consideration paid by the Developers for renting, as alleged. In fact the Appellant had paid Service Tax on the consideration being Licence Fees. There appears no suppression as everything was revealed and was available on Balance Sheet submitted to the Department during Audit conducted from July, 2012 to 2013 and also the same were reflected in ST-3 Returns. It is clear that the appellant nurtured a bonafide belief and it involves interpretation The Department was also not clear on the matter, as is clear from various correspondences discussed in the preceding paras.. Reliance in this regard is placed on: 2016 (42) STR 634 (Cal.): in the matter of Simplex Infrastructure Ltd. Vs. Commissioner Service Tax, Kolkata-Extended period not applicable- when assessee is diligent in responding to all notices issued by the Department explaining nature and scope of their business with supporting documents- There was full and sufficient disclosure of nature of assessee‟s business - There was no suppression of material facts to keep Department in dark with deliberate intent to evade payment of Service tax,

c. It is on record that Development Agreement was enclosed by M/s Aria Hotels while seeking clarification from Chairman vide letter dated 11.07.2011 Similarly, letter dated 17.07.2012 to Commissioner, Service Tax indicates that Development Agreement dated 04.07.2009 was duly enclosed. Also the notes on clauses of the Development Agreement, in Clause No.1.1.39 clearly refer to and defines „Infrastructure Development and Services Agreement‟. Therefore, it is not correct that the appellants had not informed or misled the Department about the existence of IDSA. It is on record that all the clarification by M/s Aria and the Appellants were in relation to License Fee of vacant land and that the Legal Opinion Appeal No. ST/52815/2016-DB of PWC dated 09.07.2007 had clearly indicated that the advances received towards Development of basic common infrastructure facilities were not liable to service tax either as „Renting of Immovable Property Services‟ as they do not vest any exclusive right in any immovable property in creation of common facilities or „Business Support Services or „Airport Services‟.Even when „Renting of Immovable Property w.e.f. 01.07.2010, included vacant land, the opinion has remained relevant because no exclusive right stood vested in creation of common facility. d. Again as far as non- taxability of Advance Development Cost is concerned, appellant had acted on legal opinion given by PWC which had clearly opined in 2007 that since what has been developed was infrastructure for common facilities and no exclusive rights has been vested in one or any developer. Therefore, such ADC was not taxable as renting of immoveable property. The reasoning given by the PWC in its opinion dt.09.07.2007 continues to be valid even after amendment in the definition of renting of immoveable property with effect from 1.07.2010, which brought even the vacant land with the scope of renting of immoveable property services. Therefore, we hold that extended period of limitation cannot be invoked in the facts and circumstances of the case in hand.