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TMI Blog2019 (12) TMI 180X X X X Extracts X X X X X X X X Extracts X X X X ..... ) w.e.f. 01/7/10, and therefore, it has to be held that such contracts were not covered by Section 65 (105) (ZZZh) during the period prior to 01/7/2010. As the present demand pertains entirely to period prior to 01.07.2010, the demands are not sustainable and need to be set aside - the demands of interest and imposition of penalties also need to be set aside - Appeal allowed - decided in favor of appellant. - HON'BLE MR. P. VENKATA SUBBA RAO, MEMBER (TECHNICAL) AND HON'BLE MR. P. DINESHA, MEMBER (JUDICIAL) Shri Karan Talwar, Advocate for the Appellant. Shri V.R. Pavan Kumar, AR for the Respondent. ORDER PER: P. VENKATA SUBBA RAO 1. This appeal is filed against Order-in-Original No. 19/2013-(Service Tax)-Commr dated 18.03.2013. 2. The appellant herein is a partnership firm engaged in the development and sale of apartments. They entered into a Development for Exchange agreement with Husam-Ud-Darein Trust, a wakf owned by Hazrat Zia Ali Ziaee for development of a residential complex named Nasr Apartments on the land owned by the said Trust. The appellant undertook construction on the land from December 2005 to March 2009. A General Power of Attorney (GPA) was also entered in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 718-CESTAT Chennai] k. CCE CST, Bangalore, ST-I vs Keerthi Estates Pvt Ltd [Final Order No. A/21594-21596/18] l. Ramaniyam Real Estates Pvt Ltd vs CST [2018 (6) TMI 800 CESTAT Chennai] 4. Learned counsel would submit that in section 65 (105) (zzzh) of Finance Act, 2010, an explanation was added w.e.f. 01.07.2010 as follows: Construction of a Complex which is intended for sale, wholly or partly by a builder or any person authorized by the builder before, during or after construction (except in cases for which no sum is received from or on behalf of the prospective buyer by the builder or a person authorized by the builder before the grant of completion certificate by the authority competent to issue such certificate under any law for the time being in force) shall be deemed to be service provided by the builder to the buyer. 5. This amendment created a notion of service when the complex which is constructed is intended for sale by the builder and some amount was received for sale prior to the grant of completion certificate. Before this amendment, any service rendered prior to grant of completion certificate was treated as self service by the builder. He would submit that all the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls, acoustic applications or fittings and other similar services; or (c) repair, alteration, renovation or restoration of, or similar services in relation to, residential complex . The expression residential complex was defined in Section 65(91a) of the Finance Act, 1994 as 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 any authority under 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 . There is no dispute that the complex constructed by both the assessees in these appeals are covered by the definition of residential complex as given in Section 65(91a). There is also no dispute that both the assessees had engaged contractors for construction of the complexes. The dispute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e given to the customers on completion of the complex and full payment having been made, the builder/promoter/developer was to be treated as a deemed provider of construction of residential complex service to his customers. Thus, by this explanation, the scope of the Clause (zzzh) of Section 65(105) has been expanded and this amendment by adding an explanation has been held by this Tribunal in the case of CCE, Chandigarh v. U.B. Construction (P) Ltd. (supra) as prospective amendment. In this regard, para 5 of this judgment is reproduced below :- 5. In Maharashtra Chamber of Housing Industry v. Union of India - (Bom.), the validity of the Explanation added to Sections 65(105)(zzq) and (zzzh) was challenged on several grounds. The Bombay High Court, also considered the issue whether the explanation was prospective or retrospective in operation and ruled that the explanation inserted by the Finance Act, 2010 brings within the fold of taxable service a construction service provided by the builder to a buyer where there is an intended sale between the parties whether before, during or after construction; that the Explanation was specifically legislated upon to expand the concept of taxa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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