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2024 (10) TMI 818 - AT - Service TaxFailure to pay tax - construction of 'Residential Complex' - service provided by any seller in connection with the residential complexes till execution of such sale deed would be in the nature of self-service - HELD THAT - The facts were verified by the Tribunal and thereafter it was held that in the instant case their exists an agreement for sale of land to the client and thereby making the client the owner of the land. This Tribunal also considered Board's Circular No.108/02/2009-ST dated 29.01.2009 and directed adjudication authority to consider the matter in view of the above Circular. Thereafter on remand, Commissioner has rightly followed the direction issued by this Tribunal and dropped the proceedings against the respondent. However, respondent proceeded with review and as per the Review Order, no reference is made to Board's Circular No.108/02/2009-ST dated 29.01.2009 as directed by this Tribunal. Moreover, the issue on merit is also squarely covered by large number of decisions including the decisions in M/S GARDENCITY REALTY PVT. LTD. VERSUS COMMISSIONER OF SERVICE TAX, BANGALORE 2024 (7) TMI 477 - CESTAT BANGALORE . Hence demand of service tax with interest and imposition of penalty on respondent is unsustainable. The Appeal filed by the Revenue is dismissed.
Issues:
Whether the activity of construction of a residential complex is a taxable service under Section 65(105) (zzzh) for a specific period. Whether the reviewing authority's decision was contradictory to the judgments and Final Orders issued by the Tribunal. Whether the present appeal is barred by the doctrine of res judicata due to the previous refund application and sanction. Analysis: Issue 1: The Tribunal examined whether the construction of a residential complex for personal/residential use is a taxable service under Section 65(105) (zzzh) until 01.07.2010. The Respondent argued that various judgments supported their position, emphasizing that the service was not taxable during the mentioned period. The Tribunal considered the Board's Circular and directed the Adjudication Authority to review the matter. The Adjudication Authority dropped the demand, but the Revenue filed an appeal. The Tribunal found that the demand of service tax with interest and penalty was unsustainable based on previous decisions and dismissed the Revenue's appeal. Issue 2: The Respondent contended that the reviewing authority's decision contradicted previous judgments and Tribunal orders. They argued that the review did not consider the Board's Circular as directed by the Tribunal. The Respondent cited specific cases to support their position. The Tribunal agreed with the Respondent, noting that the reviewing authority failed to follow the Tribunal's directions and that the issue was covered by various decisions. Consequently, the demand for service tax, interest, and penalty on the Respondent was deemed unsustainable. Issue 3: The Respondent claimed that the present appeal was barred by the doctrine of res judicata due to a previous refund application and sanction. They highlighted that the Tribunal had allowed the refund application in a previous case, and the Assistant Commissioner had sanctioned the related refund. The Respondent argued that since no appeal was filed against the refund sanction, the current appeal should be dismissed based on res judicata. The Tribunal considered the previous refund application and sanction, concluding that the appeal was indeed barred by res judicata. Therefore, the appeal filed by the Revenue was dismissed.
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