2020 (3) TMI 750 - AT - Service Tax

Construction of residential complex service - discharge of service tax on certain residential projects - HELD THAT - The Board vide circular No.108/02/2009-ST dt.29.1.2009 has clarified that the construction done for personal use does not fall within the levy of service tax. In the present case, it can be seen that landowner is engaged directly by the appellant for construction of the flats which are intended for personal use. This is excluded from the definition of construction of residential complex service. Appeal dismissed - decided against Revenue.

Summary

Issues:
1. Demand of service tax on construction of residential complex service.
2. Setting aside of penalty by Commissioner (Appeals).
3. Cross objections filed by the respondent challenging the confirmation of demand and interest.

Analysis:

Issue 1: Demand of service tax on construction of residential complex service
The case involved the respondents engaged in the construction of a residential complex service. The original authority confirmed the demand of service tax, interest, and penalty. The Commissioner (Appeals) upheld the demand and interest but set aside the penalty. The Revenue filed an appeal against the setting aside of the penalty. The respondent contended that they had paid service tax for apartments sold to individual buyers and on behalf of landowners but not on apartments constructed for landowners. The argument was based on the definition of "residential complex" and the exclusion clause. The circular clarified that construction for personal use does not attract service tax. The Tribunal, citing precedents, held that construction for personal use by the landowner falls outside the definition of construction of residential complex service, thus setting aside the demand of service tax.

Issue 2: Setting aside of penalty by Commissioner (Appeals)
The Commissioner (Appeals) upheld the demand and interest but set aside the penalty imposed by the original authority. The Revenue appealed against the setting aside of the penalty. However, the Tribunal did not delve into the penalty issue in detail, as the primary focus was on the demand of service tax. The Tribunal's decision primarily addressed the demand of service tax on the construction of residential complex services based on the exclusion clause and relevant legal interpretations.

Issue 3: Cross objections challenging the confirmation of demand and interest
The respondent filed cross objections challenging the confirmation of demand and interest. The respondent argued that they had discharged service tax obligations appropriately based on the definition of "residential complex" and the exclusion clause. The Tribunal, considering the arguments and legal provisions, allowed the cross objections filed by the respondent, leading to the dismissal of the Revenue's appeal. The Tribunal's decision was based on the interpretation of relevant legal provisions, circulars, and precedents, emphasizing that construction for personal use falls outside the ambit of service tax liability under the construction of residential complex service.

In conclusion, the Tribunal's decision in this case revolved around the interpretation of the definition of "residential complex" and the exclusion clause, ultimately leading to the setting aside of the demand of service tax on the construction of residential complex services. The decision was supported by legal provisions, circulars, and precedents, highlighting the importance of understanding the scope and applicability of service tax in construction-related activities.