2014 (11) TMI 314 - AT - Service Tax

Waiver of pre deposit - Construction of residential and commercial complex service - Held that - Even if there is a transfer of undivided share of land and a separate agreement is entered into for construction of apartment, the agreement would not lead to the service of construction of residential complex but only a part of the complex. This became exigible only after the insertion of explanation. As regards the second differentiation, we do not find any relevance. what was being sold and agreed to be constructed was an apartment which is nothing but part of a residential complex and therefore prior to 01/07/2010, it could not have been taxed and since the nature of transaction does not make the difference of the outcome, the decision in the case of Krishna Homes 2014 (3) TMI 694 - CESTAT AHMEDABAD would apply since it examines the issue in great detail and has considered all aspects. Unfortunately the decision in the case of LCS City Makers 2012 (6) TMI 363 - CESTAT, CHENNAI was not brought to the notice of the Bench. In our opinion, what is required to be seen is what exactly is the agreement for. If the agreement is not for the whole complex, for the period prior to 01/07/2010, prima facie, there cannot be any demand. In view of the above discussion, we consider that the appellant has made out a prima facie case for waiver of pre-deposit of balance dues and recovery thereof for 180 days from the date of this order. - Stay granted.

Summary

Issues:
1. Demand of service tax on apartments constructed and sold by the appellants.
2. Demand of service tax on the land owner's share of apartments constructed by the appellants.
3. Applicability of service tax liability based on the interpretation of the definition below sub-clause (zzzh) of Section 65(105) w.e.f. 01/07/2010.
4. Interpretation of the deeming provision in the explanation to Section 65(105)(zzzh) regarding construction of a complex intended for sale.
5. Comparison of decisions in the cases of Krishna Homes vs. CCE, Bhopal and CCE, Kanpur Vs. Vee Aar Developers Pvt. Ltd.
6. Analysis of the distinction between the cases of Krishna Homes and LCS City Makers (P) Ltd. in relation to the transfer of undivided share of land and nature of agreements.

Analysis:
1. The judgment deals with the demand of service tax on apartments constructed and sold by the appellants during a specific period. The appellants contested the demand, arguing that the entire demand related to the land owner's share was time-barred. Additionally, they claimed that the tax liability for apartments constructed and sold only arose from 01/07/2010 onwards based on the interpretation of the relevant legal provisions.

2. The issue of demand related to the land owner's share of apartments constructed by the appellants was also considered. The appellants argued that the demand was time-barred. The judgment analyzed the applicability of service tax on such transactions and whether the demand was justified.

3. The judgment extensively discussed the interpretation of the definition below sub-clause (zzzh) of Section 65(105) w.e.f. 01/07/2010 concerning taxable services related to the construction of a complex intended for sale. The deeming provision in the explanation to the section was crucial in determining the liability for service tax.

4. The court analyzed the deeming provision's impact on the liability for service tax, emphasizing that the construction of a complex intended for sale by a builder should be considered a service provided to the buyer. The judgment referred to relevant legal precedents and decisions to support the interpretation of the deeming provision.

5. A comparison of decisions in the cases of Krishna Homes vs. CCE, Bhopal and CCE, Kanpur Vs. Vee Aar Developers Pvt. Ltd. was conducted to ascertain their relevance to the present case. The judgment evaluated the differing views presented in these cases and their applicability to the issues at hand.

6. The judgment delved into the distinction between the cases of Krishna Homes and LCS City Makers (P) Ltd. concerning the transfer of undivided share of land and the nature of agreements entered into. The court concluded that the nature of the agreement and the construction of a residential complex were pivotal in determining the liability for service tax, especially before 01/07/2010. The decision in the case of Krishna Homes was deemed applicable due to its detailed analysis of the relevant issues.