9911796707
TMI Blog2023 (4) TMI 548X X X X Extracts X X X X X X X X Extracts X X X X ..... The appellant is in the business of developing lands by construction of shopping malls and then selling the units in the shopping malls or leasing them out. For this purpose, the appellant acquired a plot of land measuring 9996 sq.mtrs from Rajasthan Industrial Investment Corporation [RIICO] for an amount of Rs.6 crores and an allotment letter dated July 15, 2006 was issued by RIICO. 3. According to the appellant, after taking the requisite approval from RIICO and other Authorities it started the construction of property on the aforesaid land and named the mall as "The Capital Mall". The appellant further claims that the construction of the Mall was completed in June 2009 after which the appellant wrote a letter dated August 07, 2009 to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, in relation to commercial or industrial construction shall be subjected to service tax. However, the Explanation to the said section 65(105)(zzq) provides as follows: "Explanation: For the purpose of this sub clause, the construction of new building which is intended for sale, wholly or partly, by a builder or any person authorized by the builder before, during or after construction (exception in cases for which no sum is received from or on behalf of the prospective buyer by the builder or the person authorized by the builder before 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." 6. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be called as the Service Tax (Removal of Difficulty) Order, 2010. (2) This Order shall come into force on the 1st day of July, 2010. 2. For the purposes of sub-clauses (zzq) and (zzzh) of clause (105) of section 65 of the Finance Act, the expression 'authority competent' includes, besides any Government authority,- (i) architect registered with the Council of Architecture constituted under the Architects Act, 1972(20 of 1972); or (ii) chartered engineer registered with the Institution of Engineers (India); or (iii) licensed surveyor of the respective local body of the city or town or village or development or planning authority; who is authorized under any law for the time being in force, to issue a completion certificate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etter dated 31.03.2010 about level of construction upto 31.03.2010. Hence it cannot be said that the letter dated 31.03.2010 can be treated as a completion certificate. I observe that the letter dated 31.03.2010 mentions „construction work done is as per sanction plan and RIICO norms which be used for commercial activities as per terms and condition of allotment‟. A plain reading of the contents of letter dated 31.03.2010 might infer that the construction work is complete, but in view of categorical denial by a senior level officer of the same organization, the same cannot be said to be a completion certificate 12. As regards the first submission it needs to be noted that Government had issued the Service Tax (Removal of Diffic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... business activities. 14. The Commissioner (Appeals) was therefore, not justified in placing reliance upon the subsequent statement made by an officer of RIICO that the said letter dated March 31. 2010 should not be read as a completion certificate. 15. Thus, in either view of the matter, the completion certificate has been issued to the appellant before July 01, 2010. The payments were received by the appellant after the completion certificate was issued to the appellant. They could, therefore, not be subjected to levy of service tax. The impugned order dated March 27, 2013 passed by the Commissioner (Appeals), therefore, cannot be sustained and is set aside and the appeal is allowed. (Order pronounced in the open court on 12.04.2023) X X X X Extracts X X X X X X X X Extracts X X X X
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