9911796707
TMI Blog2015 (2) TMI 706X X X X Extracts X X X X X X X X Extracts X X X X ..... under Service Tax provisions added by Chapter V of Finance Act, 1994, is before this Court for setting aside assessment order of Assessment Commissioner dated 23/24 October, 2008. 3. Learned Advocate Shri Bhoot submits that liability is fastened because of definitions contained in Section 65 clause 105(zzq) and (zzzh). He points out that the services rendered by builder was made taxable partly in 2004 and thereafter in 2005. However, later circulars issued by CBEC to clear the confusion show that such demand could not have been made. He submits that the petitioner could not then respond to show cause notices as its partner looking after the affairs had undergone a byepass surgery. The demand in terms of said assessment was made for the fir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6-2004 to 15-6-2005 on account of "commercial and industrial construction" services. On the basis of these findings, the demand of Rs. 4,22,827/has been worked out against petitioner and the penalty of Rs. 8,45,000/has been imposed upon it. Demand is under Section 73 of the Finance Act while penalty is under Section 78 of the thereof. 6. Perusal of circular No. 108/02/2009ST issued by CBEC, New Delhi shows that it is on the subject of imposition of service tax on builders. It is dated 29-1-2009. Paragraph no. 3 therein is important for present purposes, which reads thus : 3. The matter has been examined by the Board. Generally, the initial agreement between the promoters/builders/developers and the ultimate owner is in the nature of ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "self service" and consequently would not attract service tax. 8. Learned Advocate Shri Bhoot as also learned Advocate Shri Mirza have their respective contention on paragraph no. 3. However, impugned order does not consider the fact whether the petitioner had during relevant period executed any sale deed or not. If concept of 'self service' is attracted in case of petitioner, the petitioner may not be liable to pay any tax under the head service tax. Similarly other factors taken note of in paragraph 3 of circular need to be looked into by the assessing authority. 9. Advocate Shri Mirza submitted that this circular issued in 2009 cannot be corelated with facts looked into the impugned order. We find that the circular only recogni ..... X X X X Extracts X X X X X X X X Extracts X X X X
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