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TMI Blog2018 (7) TMI 1385X X X X Extracts X X X X X X X X Extracts X X X X ..... of the orders they constructed ten units of HIG houses as well as in the second one, twelve units of MIG houses. It is claimed that these units were individual houses. The lower authorities took the view that even if they were individual houses, they were part of the residential complex with various common facilities and were part of the colony. Accordingly, the lower authority has held that the construction of the above housing units will be liable for payment of service tax under the category of 'Construction of Complex Service' defined under Section 65(30a) read with Section 65(91a) of the Finance Act, 1994. The order for payment of Service tax has been challenged mainly on the following grounds: (i) It is submitted that construction of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k orders for the construction of ten as well as twelve housing units in different parts of Pratap Nagar colony. A set of ten / twelve houses do not come within the definition of residential complex under Section 65(91a) which is applicable only to a building or buildings having more than twelve residential units, but the Revenue has taken the view that these residential units have been constructed as part and parcel of a massive colony. But, we note that Revenue has not gathered any specific evidence not brought on record the fact whether such facilities are existing in the part of the residential complex where the appellant has carried out the construction. 7. We have also carefully considered the Final Order No. 58379/2017 dated 11.12.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstruction of individual house for Rajasthan Housing Board has been a subject matter of various appeals before the Tribunal. It has been consistently held that to tax the appellant under "construction of complex service", it is necessary to record that the construction are of residential complex of having 12 or more dwelling units or parts thereof. These complexes, should share common facilities, even if they are independent houses. Such categorical finding is required to satisfy the statutory provisions of Section 65(91a) of the Finance Act, 1994. We find that in the present case, the evidences are lacking. The Tribunal in the case of Hari Narain Khandelwal vide Final Order No.53308/2017 dated 16.05.2017 held as under:- "5. We have perus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n close proximity in a common area. There is no finding to the effect that these common facilities are within the approved lay out by the local Authorities and they are for the houses of such residential complexes within the location. In other words, various residential units built independently but sharing roads, street lights, sewerage line, park in close proximity do not by themselves come under the taxable category of residential complex. It is apparent that all housing units in any urban colony do share roads, street lights, sewerage lines, water supply, which are provided by the local Authorities. It does not mean that any residential unit built in any colony having such common roads, street lights, water supply or nearby park will be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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