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TMI Blog2012 (6) TMI 420X X X X Extracts X X X X X X X X Extracts X X X X ..... 1-7-2010 contained in the explanation added to Section 65(105)(zzq) and (zzzh) having only prospective effect - prior to this date, a builder cannot be deemed to be service provider - as the entire dispute in the present case lies prior to 1-7-2010 a prima facie case against the impugned demand of service tax and the connected penalty arises - since appellant paid an amount of over Rs.64 lakhs waiver of pre-deposit of the amounts involved is allowed and recovery thereof stayed till the disposal of appeal – in favour of assessee. - ST/337/2011; - - - Dated:- 17-4-2012 - M.V. Ravindran, B.S.V. Murthy, JJ. Paritosh Gupta, Adv. for the Appellant S.K. Mall, AR for the Respondent M.V. Ravindran, Judicial Member 1. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of service and hence service tax liability arises even prior to 1.7.10, and the explanation has to be considered as clarificatory effective from the date when the services came into statute. 5. We have considered the submissions made at length by both sides and perused the records. 6. The dispute in this case is regarding the service tax liability of the amounts received by the appellant from their purchasers of the flats/shops. It is undisputed that Revenue is trying to tax the amounts received as payment for the agreements and received by the appellant prior to 1.7.10. We find that in an identical situation, in the case of Mothisham complexes (P) Ltd. (supra) the coordinate bench while granting an unconditional stay has recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to "construction of residential complex" would also be a taxable service. An explanation similar to the above was added to this sub-clause also. Both the Explanations came to be inserted with effect from 1-7-2010 by Section 76 of the Finance Act, 2010. The learned counsel has argued that, prior to the enactment of the above Explanations, a builder was not a service provider and that a builder could be deemed to be service provider only with effect from 1-7-2010 and, therefore, the demand of service tax on the appellant for the periods of dispute, which are admittedly prior to 1-7-2010 cannot be sustained in law. The learned counsel has also claimed support from Board's Circular No. 108/2/2009-S.T, dated 29-1-2009. The learned counsel ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ming provision would be applicable only from 1-7-2010. Our attention, has also been taken to the texts of certain other Explanations figuring under Section 65(105). In some of these Explanations, there is an express mention of retrospective effect. Therefore, there appears to be substance in the learned counsel's argument that the deeming provision contained in the explanation added to Section 65(105)(zzq) and (zzzh) of the Finance Act, 1994 will have only prospective effect from 1-7-2010. Apparently, prior to this date, a builder cannot be deemed to be service provider providing any service in relation to industrial/commercial or residential complex to the ultimate buyers of the property. Admittedly, the entire dispute in the present case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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