TMI Blog2018 (9) TMI 917X X X X Extracts X X X X X X X X Extracts X X X X ..... d in favor of appellant. - Service Tax Appeal No. 53847 of 2014 - ST/A/52890/2018-CU[DB] - Dated:- 20-8-2018 - Shri C.L. Mahar, Member (Technical) And Ms. Rachna Gupta, Member (Judicial) Shri Atul Gupta, C.A. for the appellant. Shri G.R. Singh, Authorized Representative (DR) for the Respondent. ORDER Per. C.L. Mahar :- The brief facts of the case are that the appellant/assessee is registered with the service tax department for providing service of construction of commercial or industrial buildings and civil structure and work contract service as defined under Section 65 (105) of Finance Act, 1994. The appellant/assessee has filed a refund claim of ₹ 52,52,745/- on the ground that they have wrongly paid service tax under construction of complex service as they were otherwise exempted from payment of service tax. Its a matter of record that the appellant/assessee has constructed 72 Type VI flats at Netaji Nagar, New Delhi after getting a work order from National Building Construction Corporation [NBCC] Ltd., a Government of India undertaking under the Ministry of Urban Development, New Delhi. It has been the contention of the appellant that the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the residential complex does not include a complex which is constructed by person directly engaging any other person for designing/planning/construction and is intended for personal use as residence by such person. This definition also explains that personal use includes promoting use of such property as residence by another person on rent or even without consideration. It is further being added that these houses are meant for the Government officials and it cannot be said that same are for any commercial use rather these houses are being used by the Government of India himself or by its officers. Therefore by the explanation of the definition itself under the category of the personal use, the activity of construction of houses is exempted from the levy of the service tax. Since, the activity itself has been exempted from the levy of service tax even if it is constructed by a sub-contractor same cannot be put to the taxable category. The appellant/assessee has further contended that as a sub-contractor of NBCC they are entitled for all the benefits which are available to NBCC. It has also been argued that this Tribunal in its decision in the case of R.B. CHY Ruchi Ram Khattar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. We have heard both the sides. 6. It can be seen that under the definition of the residential complex it has been provided that :- residential complex means any complex comprising of (i) a building or buildings, having more than twelve residential units; (ii) a common area; and (iii) any one or more of facilities or services such as park, lift, parking space, community hall, common water supply or effluent treatment system, located within a premises and the layout of such premises is approved by an authority under any law for the time being in force, but does not include a complex which is constructed 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 this clause, - (a) personal use includes permitting the complex for use as 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; from the above mentioned defin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in that case, NBCC would be the service receiver and the construction would not be for their personal use . 7. It is apparent from above that where the NBCC is directly constructing the houses for Government of India which are meant for its officers, same are covered by the exemption category given under residential complex definition under Section 65 (50a) of the Finance Act, 1994. It has further been clarified by the CBEC in its Circular dated 21 st October, 2011 issued from file No. 137/57/2011-ST that the benefit of the exemption which are available to the main contractor of any infrastructure project same exemption cannot be denied to the sub-contractor who is undertaking the construction of various infrastructure projects under the work contract service following the above analogy, we are of the view that the sub-contractor providing service to NBCC who is the main contractor for construction of the residential complex for the Government of India will also be entitled for exemption category which is given in the definition of the residential complex itself. 8. We are also of the view that since the activity itself of construction of the houses for personal use is bey ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e drew our attention to the letter relied upon by the learned advocate and submitted that in that letter, it has been clarified by the Board that if NBCC were to construct residential accommodation and handover to Govt. of India, there would be no liability to service tax. However, if NBCC were to entrust the work to sub-contractor and such sub-contractor constructed the residential complex and handed over to NBCC who in turn handed over the same to Govt. of India, service tax would be leviable. He drew our attention to the observation of learned Commissioner in his order wherein he has also held that this is not a case where residence is for personal use of a person and is not covered by the explanation given under clause (30a). We have considered this submission. We find ourselves in agreement that the contention of the learned advocate that service has been provided by the appellant to Govt. of India in this case and CPWD and Income Tax department cannot be treated as separate entities just because service has been provided to CPWD who in turn handed over the same to Income Tax department. Further, learned advocate also drew our attention to the notice issued by the CPWD invitin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (ii) a common area; and (iii) any one or more of facilities or services such as park, lift, parking space, community hall, common water supply or effluent treatment system, located within a premises and the layout of such premises is approved by an authority under any law for the time being in force, but does not include a complex which is constructed 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 this clause - (a) personal use includes permitting the complex for use as 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. ] We have already explained the submission of learned advocate in brief and as explained by him in this case, residential complex constructed by the appellant is meant for use by the Income Tax department to provide the same on rent to the employees and therefore, it is clearly covered by the explanation given ..... X X X X Extracts X X X X X X X X Extracts X X X X
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