2013 (5) TMI 535 - AT - Service Tax

Construction of complex - several quarters for Kendriya Vidyalaya - These residential quarters were distributed in different buildings in the same compound. None of the buildings had more than 12 flats in each building. - held that - The definition u/s 65(91a) is applicable for taxable entry 65(105)(zzzh) the entry relevant for deciding this appeal as also 65(105)(zzzza) covering works contract which was the entry in the case of Macro Marvel Projects 2008 (9) TMI 80 - CESTAT, CHENNAI The explanation pointed out by the AR has nothing to do with the dispute in hand because that explanation defines residential unit and the definition in dispute is that of residential complex . The explanation can mean only that the building should have 12 residential units. So the explanation is not for interpreting the meaning of residential complex . - Prima facie case in favor of assessee - pre deposit waived.

Summary

Issues: Interpretation of the term 'residential complex' under Section 65(91a) for service tax liability.

In this case, the appellants were registered for construction services and had built residential quarters for Kendriya Vidyalaya. The dispute arose when the Revenue argued that the entire compound should be considered a 'complex,' leading to a service tax liability due to the presence of more than 12 flats in the compound. The Counsel for the appellant relied on the definition of 'residential complex' under Section 65(91a), contending that only buildings with more than 12 residential units should be considered as such. The Counsel cited a Tribunal decision and a subsequent dismissal by the Supreme Court supporting their interpretation. The Revenue, however, maintained that the compound as a whole should be seen as one complex due to the number of residential units constructed. The AR highlighted the definition of 'residential unit' under Explanation-I of Section 65(91a) to support the Revenue's argument.

The Tribunal analyzed the definition of 'residential complex' under Section 65(91a), which includes buildings with more than twelve residential units, common areas, and additional facilities. The Tribunal noted that the explanation defining 'residential unit' did not directly impact the interpretation of 'residential complex.' Given the Supreme Court's previous confirmation of the appellant's interpretation, the Tribunal decided to waive the pre-deposit requirement and stay the collection of dues pending the appeal. The Tribunal's decision was based on the clear definition provided under the relevant tax entry, supporting the appellant's position and rejecting the Revenue's argument regarding the compound being considered a single complex.