9911796707
TMI Blog2017 (8) TMI 552X X X X Extracts X X X X X X X X Extracts X X X X ..... ot sought to be taxed under the provisions of the Finance Act/Service Tax provisions. For the levy, it should be registered complex comprising more than 12 units prior to 01 July, 2012 and more than one residential unit in a complex from 01 July, 2012. Admittedly in the present case, the appellant constructed individual residential houses, each block, being a residential unit which is an admitted fact. In any case, it appears that the legislature did not want to tax construction of individual residential units to the levy of service tax. We find that the learned Commissioner have erred in considering the approved plan for construction of more than 12 individual units on a large plot of land as a residential complex which we find is wrong ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r buildings, having more than 12 residential units, a common area, and any one or more facilities or services such as park, lift, parking space, community hall, common water supply or effluent treatment system. It further appeared that in terms of explanation to Section 605(105)(zzzh) of the Act, it is clear that service of construction of a complex, which is intended for sale, wholly or partly by a builder or any person authorised by the builder before, during or after construction (except in cases for which no service is received from or on behalf of prospective buyer by the builder or a person authorised by the builder before the grant of completion certificate by the authority competent to issue such certificate under any law for the ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson designated by him. Accordingly, show cause notice dated 21 October, 2015 was issued invoking the extended period of limitation demanding service tax of ₹ 96,91,579/- for the period 2010 11 to 2014 15. The SCN was confirmed vide Order-in-Original No. AGA-EXCUS-000-COM-0006-16-17 dated 8 June, 2016 by the learned Commissioner Custom Central Excise Service Tax, Agra and further penalty under Sections 77 and 78 of the Act was imposed. 3. Being aggrieved the appellant-assessee is before this Tribunal. The learned counsel for the appellant urges on following 4 points:- (i) Individual units or row houses do not fall in the definition of residential complex. (ii) Units have been sold only after obtaining completion certific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the time being in force, but does not include a complex which is contructed by a person directly engaging any other person for designing or planning of the layout, and the construction of such complex is intended for personal use as residence by such person. Explanation:- For the removal of doubts, it is hereby declared that for the purposes of the clause, (a) Personal use includes permitting the complex for the use a 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 of residence; III. Taxable Services Section 65(105)(zzzh) Section 65(105)(zzzh) Taxable Services means any service provided or to be provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Explanation 2 . Explanation 3 Explanation 4 . V. Section 66E Declared Services The following shall constitute declared service, namely:- (a) Renting of immovable property (b) Construction of a complex, building, civil structure or a part thereof, including a complex or building intended for sale to a buyer, wholly or partly, except where the entire consideration is received after issuance of completion-certificate by the competent authority. Explanation. For the purpose of this clause, (I) The expression competent authority means the Government or any authority authorized to issue completion certificate under any law for the time being in force and in case of non-requirement of such certifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an one residential unit in a complex from 01 July, 2012. Admittedly in the present case, the appellant constructed individual residential houses, each block, being a residential unit which is an admitted fact. In any case, it appears that the legislature did not want to tax construction of individual residential units to the levy of service tax. We find that the learned Commissioner have erred in considering the approved plan for construction of more than 12 individual units on a large plot of land as a residential complex which we find is wrong and misconceived. Accordingly, we find that the show cause notice is not maintainable. Accordingly, we allow this appeal and set aside the impugned order. The appellant shall be entitled for consequ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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