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TMI Blog2011 (10) TMI 439X X X X Extracts X X X X X X X X Extracts X X X X ..... both sides extensively. 3. The relevant facts, in brief, are that the applicant promoted a residential project known as "Isha Signature Villa" consisting of 97 houses. They have received consideration amounting to about Rs. 52 crores during the period from 1-6-2006 to 31-10-2008. The department felt that the activities undertaken by the applicant shall come under the category of "Construction of Complex" services and, therefore, show cause notice dated 15-1-2010 proposing demand of service tax of Rs. 1,96,09,763/- was issued and in pursuance of the said SCN, the impugned order with consequences as mentioned above was passed. 4.1 Ld. Advocate submits that the applicant is not engaged in construction of any "residential complex". ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ideration. 4.3 Even if it is treated as a "residential complex", the same would attract levy only w.e.f. 1-7-2010 consequent to modifications introduced by the Finance Act, 2000 to Section 65(105)(zzzh) by which the following Explanation was introduced :- ''Explanation. - For the purposes of this sub-clause, construction of a complex which is intended for sale, wholly or partly, by a builder or any person authorized by the builder before, during or after construction (except in cases for which no sum is received from or on behalf of the prospective buyer by the builder or a person authorized by the builder before the grant of completion certificate by the authority competent to issue such certificate under any law for the time being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as duly recorded in the sale deed executed for selling the plots to the individual customers. He also submitted that the Notification No. 36/2010 relates to new services which became taxable only from 1-7-2010 whereas the construction of complex service was very much taxable even prior to that date and that the entire sale consideration has been received prior to 1-7-2010. 6.1 We have carefully considered the submissions from both sides and perused the records including sample sale deed executed for sale of plot in connection with one of the villas. 6.2 Prima facie, we find the following :- (a) The 97 "independent houses" referred to as villas are part of a gated community built as per the layout of the prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that for the purposes of this clause, - (a) "person use" includes permitting the complex for use as residence by another person on rent or without consideration; (b) "residential unit" means a single house or a single apartment intended for use as a place residence" From a close reading of the above, it is noticed that the residential complex can comprise of "a building" or "buildings". This shows that the residential complex envisaged for taxing purpose can consists of more than one building. Further, the Explanation of "residential unit" refers to "a single house" or "single apartment" which implies that independent houses can form part of the residential complex. (c)&nb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es. (f) The non-registration as a service provider in spite of their having entered a contract with the customers that "applicable service tax as shall be indicated and demanded by the builder/promoter shall be paid" and their furnishing the relevant details latest by 15-7-2009, go to show that the SCN dated 15-1-2010 may not be time-barred. 7. In view of the above, we hold that the applicant has not made out strong case for full waiver of the dues as per the impugned order. 8. Taking the entire facts and circumstances of the case into account, we direct the applicant to deposit Rs. 40,00,000/- (Rupees Forty lakhs only) within a period of six weeks from the date of receipt of this order. Failure to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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