2013 (12) TMI 495 - AT - Service Tax

Demand of service tax - Construction of residential complexes - Held that - appellant was a NGO and construction was done for a Rural Development Society which is not the arm of the State Government and its members were not staying in the houses constructed whereas in this case construction is done for Tamil Nadu State Slum Clearance Board which is a extended arm of the State Govt and the Govt appears to continue to the owner of the flats - Following decision of Khurana Engineering Ltd. Vs CCE Ahmedabad 2010 (11) TMI 81 - CESTAT, AHMEDABAD - Conditional stay granted.

Summary

Issues involved: Construction of residential complexes without paying service tax, interpretation of the definition of residential complex under section 65(105)(91a) of Finance Act, 1994, appeal against demand of Rs.6,52,95,618/-, application for waiver of pre-deposit for admission of the appeal, construction for Tamil Nadu Slum Clearance Board, liability for quarters constructed for Airport Authority of India, interpretation of personal use in the context of residential complex.

Analysis:

1. The applicant, engaged in construction, did not pay service tax for certain projects, including construction of apartments for Tamil Nadu Slum Clearance Board and quarters for Airport Authority of India. The Revenue calculated a total tax liability of about Rs.6.5 crores. A demand was confirmed against the applicant, leading to an appeal and an application for waiver of pre-deposit.

2. The applicant argued that constructions for Tamil Nadu Slum Clearance Board should not be considered residential complexes under the Finance Act, as the flats were in possession of the Board and allotments were given to occupants, not owners. The applicant sought waiver based on the definition of personal use in the Act and cited precedents like Jafty Earth Movers and Contractors Ltd. case.

3. The Revenue contended that since the flats were intended for allottees, they do constitute residential complexes. The Revenue cited a Tribunal order in a similar case where a deposit was called for. The Tribunal noted the debatable nature of the issue but observed that the possession aspect was not raised before the adjudicating authority.

4. The Tribunal distinguished the present case from previous decisions, noting the government's continued ownership of the flats constructed for the Slum Clearance Board. The Tribunal also found prima facie merit in the applicant's favor regarding the quarters constructed for the Airport Authority, citing a precedent in Khurana Engineering Ltd. case.

5. Ultimately, the Tribunal directed the applicant to make a pre-deposit of Rs.50,00,000 within six weeks, with the balance dues waived subject to this deposit. The collection of dues was stayed pending the appeal. The decision was dictated and pronounced in open court.

This detailed analysis covers the various legal arguments, interpretations of the law, precedents cited, and the Tribunal's decision regarding the issues involved in the judgment.