2013 (10) TMI 636 - AT - Service Tax

Construction of Residential Complexes Waiver of Pre-deposit - The applicant was engaged in the business of construction of residential complexes - Held that - Following LCS City Makes Vs CST Chennai 2012 (6) TMI 363 - CESTAT, CHENNAI - Already in large number of cases of this type order had been passed - Most of the issues raised are decided in favour of Revenue - There are certain issues relating to valuation of service rendered to the owner of the land which may need to be considered in view of certain guidelines issued by CBEC construction was done collecting money from the persons for whom the flats were being constructed and at the end of construction, there was no registration of flat - Therefore it is a clear case of providing service and not the case of sale of flats - To be fair to all the parties concerned, we follow the norm of ordering 50% of the service tax demanded for admission of appeal - Consideration the fact that applicant already has already deposited amount for pre-deposit stay granted partly.

Summary

Issues: Service tax liability on construction of residential complexes, applicability of CBEC clarifications, interpretation of exclusion clause in section 65 (91a) of the Finance Act 1994, pre-deposit for admission of appeal.

Analysis:

1. Service Tax Liability on Construction of Residential Complexes:
The applicant, engaged in construction of residential complexes, was found to have not paid appropriate service tax on certain constructions during a specific period. A show cause notice resulted in the confirmation of a tax demand of Rs.90,13,930/- along with interest and penalties. The appellant argued that they were acting as developers of land under joint venture agreements with landowners, and certain CBEC clarifications supported their position that service tax was not required to be paid before a certain date. However, the Revenue contended that the transactions involved providing services rather than the sale of flats, and therefore, service tax liability existed. The Tribunal noted that similar issues had been decided in favor of Revenue in previous cases, emphasizing the need to consider the valuation of services rendered to the landowner.

2. Applicability of CBEC Clarifications:
The appellant relied on CBEC clarifications to support their contention that service tax liability did not arise before a specific date. The Revenue, however, argued that these clarifications applied only to cases involving the sale of flats, not to the present scenario where services were provided. The Tribunal acknowledged the relevance of CBEC guidelines in determining the tax liability but emphasized the need to consider specific circumstances and transactions in each case.

3. Interpretation of Exclusion Clause in Section 65 (91a) of the Finance Act 1994:
The interpretation of the exclusion clause in section 65 (91a) of the Finance Act 1994 was a crucial point of contention. The appellant argued that since the flats were constructed for self-occupation and not sold, they fell outside the definition of a 'residential complex,' thereby exempting them from service tax liability. In contrast, the Revenue contended that the exclusion clause applied only when the entire complex was for the personal use of the landowner, not when only a part of the complex was retained by the landowner. The Tribunal referred to a previous judgment to support the Revenue's position and stressed the need to analyze the specific circumstances of each case.

4. Pre-deposit for Admission of Appeal:
In light of the arguments presented by both parties and considering previous decisions on similar issues, the Tribunal ordered the appellant to make a further deposit of Rs.27,00,000/- within a specified period for the admission of the appeal. This pre-deposit was set at 50% of the service tax demanded, taking into account the amount already deposited by the appellant. Upon compliance with this directive, the Tribunal waived the pre-deposit of the remaining balance and granted a stay on the collection of dues pending the appeal process.

This detailed analysis of the judgment highlights the key issues surrounding the service tax liability on the construction of residential complexes, the applicability of CBEC clarifications, the interpretation of the exclusion clause in the Finance Act, and the pre-deposit requirements for the admission of the appeal.