2021 (8) TMI 651 - AT - Service Tax

Refund of service tax paid erroneously - transaction was for construction of a single residential house, and thus exempted vide Sl. No.14 of N/N. 25/2012-ST dated 20.06.2012 - rejection of refund on the ground that the eligibility for a refund exists only when it involves construction of a single residential unit and not a residential unit as part of the residential complex - HELD THAT - The appellant s case is squarely covered by the Order passed by this Tribunal in the case of ASHISH OBEROI VERSUS COMMISSIONER OF CENTRAL TAX, BANGALURU SOUTH COMMISSIONERATE 2019 (7) TMI 215 - CESTAT BANGALORE wherein the Tribunal has allowed the appeal of the appellant. Appeal allowed - decided in favor of appellant.

Summary

Issues:
Appeal against rejection of refund claim for service tax on purchase of Villa - Interpretation of 'residential complex' - Applicability of Notification No.25/2012-ST dated 20.06.2012.

Analysis:
The appeal was filed against the rejection of a refund claim for service tax paid on purchasing a Villa, contending that the transaction was for the construction of a single residential house, exempt from service tax under Sl. No.14 of Notification No.25/2012-ST. The Original Authority and Commissioner upheld the rejection, citing eligibility for refund only for construction of a single residential unit, not part of a residential complex. The appellant argued that a separate contract for land purchase and house construction was entered, meeting the definition of 'residential complex'. Referring to various decisions, the appellant highlighted the absence of common facilities and the relinquishment of parks and roads to the Government, supporting the claim that the project did not constitute a residential complex.

The Tribunal, after hearing both parties, relied on a previous decision in the case of Ashish Oberoi, where it was held that for a project to be a residential complex, specific conditions must be met, which were not fulfilled in the present case. The Tribunal noted the separate agreement for house construction, individual plan approval, and the relinquishment of common facilities to the Government, concluding that the impugned order was unsustainable. By applying the ratio of the cited decisions, the Tribunal set aside the impugned order, allowing the appeal with consequential relief, if any.

In conclusion, the Tribunal allowed the appeal, emphasizing the distinct nature of the construction project, the absence of common facilities, and the relinquishment of certain areas to the Government as factors supporting the appellant's claim that the project did not fall under the definition of a 'residential complex'. The decision was based on a thorough analysis of the legal provisions and precedents, providing clarity on the interpretation of the term 'residential complex' in the context of service tax liability.