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TMI Blog2023 (3) TMI 1212X X X X Extracts X X X X X X X X Extracts X X X X ..... ere it was held that in the absence of a contractor hired by Society and nature of the transaction between the parties and in the light of definition of service and its liability for service tax, the transaction in this case cannot be considered taxable. With the above orders of the tribunal as well as the High Court, the issue on merit that whether the service of construction of complex provided by the appellant s cooperative housing society to its members is eligible to service tax or otherwise has been settled in favour of the appellant. The impugned order is not sustainable - Appeal is allowed. - Service Tax Appeal No.249 of 2012 - Final Order No. A/10709/2023 - Dated:- 24-3-2023 - MR. RAMESH NAIR, MEMBER (JUDICIAL) AND MR. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tail. Against this tribunal s order, revenue had filed Tax appeal No. 382 of 2010 before the Hon ble High Court of Gujarat which had been dismissed vide order dated 30.06.2011 on merit. Accordingly, the issue that the service between present cooperative housing society to its members is not liable for service tax. With this legal position, the demand in the present case does not survive hence, the appeal be allowed. 03. Shri G. Kiruanandan, learned Assistant Commissioner (AR) appearing on behalf of the revenue reiterates the finding of the impugned order. 04. We have carefully considered the submissions made by both the sides and perused the record. We find that in the present case, the issue to be decided by us is that whether the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gaging a contractor for construction of such residential complex, the contractor shall be liable to pay service tax on gross amount charged for the construction services provided, builder/promoter/developer to the under 'construction of complex' service falling under Section 65(105) (zzzh) of the Finance Act, 1994. If no other person is engaged for construction work builder/promoter/developer and the undertakes construction work on his own without engaging the services of any other person, then in such cases in the absence of service provider and service recipient relationship, the question of providing taxable service to any person by other person does not arise. 6. Further, Board had issued clarification on 29.01.01 which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... received, then such a person would be liable to pay service tax. 7. I find that in the absence of a contractor hired by Society and nature of the transaction between the parties and in the light of definition of service and its liability for service tax, the transaction in this case cannot be considered taxable. Therefore, all the appeals are allowed. However, the matter is remanded back to the original adjudicating authority in view of the fact that unjust enrichment aspect will have to be examined before granting refund and also for verification of the correctness of the claim. Against the above tribunal order, the revenue had filed Tax appeal No. 382 of 2010 wherein, the Hon ble High Court of Gujarat vide order dated 30.06.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te 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. 8. We are not inclined to discuss whether by virtue of such explanation legal situation in factual background arising in present appeal, would or would not be any different. Suffice it to note that the explanation was brought in the statute book long after the taxing event in the present case had arisen. 9. In absence of any indication in the amendment to make it either retrospective or explanation being merely declaratory or clarifiacatory in nature, such statutory change cannot be made applicable to the long past events. 10. In the result, we do not find that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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