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TMI Blog2017 (8) TMI 519X X X X Extracts X X X X X X X X Extracts X X X X ..... he agreement which shows that the possession of the constructed residential unit was handed over after completion of construction and completion of the payment. Therefore, the demand for the period 1.6.2007 to 31.7.2007 is also unsustainable. Maintenance and repair services on the corpus fund collected by the appellants - case of appellant is that this is only a deposit and not received as charges for any services rendered - Held that: - the corpus fund, even according to the department is not collected for rendering any service of maintenance. It is in the form of a deposit. We, therefore, are of the opinion that the demand of service tax on such deposit under the category of Management, Maintenance and Repair Service is unsustainable. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant submitted that for the period from 16.6.2005 to 31.5.2007, the demand is unsustainable as the service rendered by the appellant is not taxable as being the works contract service. It is covered by the judgment of the Hon ble Supreme Court in the case of CCE Vs. Larsen Toubro reported in (2015) SCC Online 738. For the remaining period i.e. from 1.6.2007 to 31.7.2007, the activity undertaken by the appellant does not fall under the said category as per the decision of the Tribunal in the case of Krishna Homes Vs. CCE 2014-TIOL-402-CESTAT-DEL. That the Tribunal in the said case held that the construction of residential units against payments when made in instalments during construction is covered by Explanation 2 Section 65(105) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not contested by the appellant. He submitted that an amount of ₹ 7,97,808/- inadvertently collected as service tax has already been deposited by the appellant along with interest on 30.8.2007. The appellant had inadvertently collected such amount from a few allottes. The appellant does not contest this amount. He therefore pleaded that the demand in respect of the construction of residential complex service as well as maintenance charges may be set aside. 5. The learned AR Shri reiterated the findings in the impugned order. 6. Heard both sides. 7. It is not in dispute that major part of the period for which demand is raised is prior to 1.6.2007. This period is covered by the judgment of the Hon ble Supreme Court rendered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the Government to tax the activity in terms of such contracts a builder/developer with prospective customers for construction of residential units in a residential complex. Such works contracts involving transfer of immovable property were brought within the purview of taxable service by adding explanation to Section 65(105)(zzzh) w.e.f. 1-7-2010, and therefore, it has to be held that such contracts were not covered by Section 65(105)(zzzh) during the period prior to 1-7-2010. 9. The Tribunal has held that in such instances, the services were not covered by section 65(105)(zzzh) during the period prior to 1.7.2010. The appellant has produced sample copy of the agreement which shows that the possession of the constructed resident ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted for rendering any service of maintenance. It is in the form of a deposit. We, therefore, are of the opinion that the demand of service tax on such deposit under the category of Management, Maintenance and Repair Service is unsustainable. However, this fact needs verification as to how the corpus fund has been put into use. It is also the case of the appellant that an amount of ₹ 13,04,280/- shown in Annexure A5 has not been collected by the appellant, during the relevant time as the project was not completed. That the department has levied the service tax basing upon the amount stated in the agreement. From the records, it is not clear as to whether the department has raised the demand merely basing on agreement and even though a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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