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TMI Blog2012 (9) TMI 851X X X X Extracts X X X X X X X X Extracts X X X X ..... omplexes to customers. Before doing the construction activity, they entered into agreement for sale of residential units and also took advances from their prospective customers. They did not pay any service tax on the activity based on the reasoning that the building was being constructed on their own land and hence the activity of construction was for their own benefit and as such, it could not be considered as a service rendered to the prospective customers. 3. Revenue was of the view that such activity was undertaken for the benefit of prospective buyers against the consideration received and the respondent should have paid service tax on such activity under the heading "construction of complex" made taxable under section 65(105)(zzzh) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntention that the ownership of the property is passed on by a sale deed only after the construction is complete. They pay stamp duty for the entire constructed value of the flats and this situation is different from a situation where undivided rights in a land are registered in the names of prospective buyers and thereafter construction is done for the benefit of land owners. 7. The Counsel relies on the following decision of the High Courts in the matter:- (i) Magus Construction (P.) Ltd. v. Union of India [2008] 15 STT 9 (Gau.) (ii) Assotech Realty (P.) Ltd. v. State of U.P. [Reserved Civil Misc. Writ Petition No. 997 of 2006, dated 23-3-2007] 8. The Counsel also submits that the entry in section 65(105)(zzzh) was am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Advance Ruling Authority in the case of Hare Krishna Developers (supra) is directly on the issue and is in favour of Revenue. 12. But the decision of Gauhati High Court in Magus Constructions (P.) Ltd. (supra) is also directly on the same issue giving a decision against Revenue. The decision of the Allahabad High Court in the case of Assotech Realty Pvt Ltd is also directly on the issue though in the matter of interpretation of works contract for the purpose of levy of VAT. 13. Thus this is a matter involving conflicting decisions by judicial forums. Following the hierarchy of Courts the decisions of High Courts should prevail over decision of the Tribunal and Advance Ruling Authority. Therefore, we are of the view that during the i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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