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TMI Blog2023 (2) TMI 1216X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice of design, planning and construction and if the property is used for personal use then such activity would not be subject to service tax. Thus, the use of the residential complex by (GSPHCL) is excluded from the definition of residential Complex as intended for personal use as residence by such persons - there are no merit in the order, the order is set aside - appeal allowed. - HON BLE MR. RAJU, MEMBER (TECHNICAL) And HON BLE MR. SOMESH ARORA MEMBER (JUDICIAL) Shri. Hardik V Vora, Consultant for the Appellant Shri G. Kirupanandan, Assistant Commissioner (AR) for the Respondent ORDER RAJU This appeal has been filed by M/s. Navtan Builders against demand of service tax as Construction of Complex Service . 2. Learned Counsel for the appellant pointed out that they were engaged by Gujarat State Police Housing Corporation Ltd. (GSPHCL). The construct residences for police personal. Learned Counsel pointed out that the service provided by them is covered under the definition of Construction of Complex Service . He relied on decisions of Tribunal in the case of LancoTanjore Power Co. Ltd. and Sima Engineering to assert that, they are not cov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sonal use has been defined as permitting the complex for use as residence by another person on rent or without consideration. In this case what emerges is that ITC intended to provide the accommodation built to their own employees. Therefore it is covered by the definition of personal use‟ in the explanation. The next question that arises is whether it gets excluded under the circumstances. The circular issued by C.B.E. C.on 24-5-2010 relied upon by the learned counsel is relavant. Para3 of this circular which is relevant is reproduced below: 3. As per the information provided in your letter and during discussions, the Ministry of Urban Development (GOI) has directly engaged the NBCC for constructing residential complex for Central Government officers. Further, the residential complexes so built are intended for the personal use of the GOI which includes promoting the use of complex as residence by other persons (i.e. the Government officers or the Ministers).As such the GOI is the service receiver and NBCC is providing services directly to the GOI for its personal use. Therefore, as for the instant arrangement between Ministry of Urban Development and NBCC is concer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 here by 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; The above definition specifically excludes construction undertaken for personal use and such personal use includes permitting the complex for use as residence by another person. We find that the above exclusion clause covers the construction activity under taken by the assessee. 8. We have gone through the case law relied upon by the respondents where a similar case has been dealt with by the Tribunal. Following the decision of the Tribunal in Nithesh Estates Ltd. (supra), we find no reason to interfere with the impugned orders which are sustained and the appeals filed by Revenue are rejected. 4.4 Similar view has also been taken in the case of Khurana Engineering-2010 (11) TMI 81 CESTAT Ahmd, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntial 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 inviting tenders. The tender starts with words Tenders are invited on behalf of the President of India . Further, we also find that the guarantee executed by the contractor and agreement entered by the contractor have been accepted by CPWD for and on behalf of the President of India. Learned DR also fairly admitted that he has not got any clarification from the department as to wheth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erson 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 for Personal use in the definition. In this case the CPWD has engaged the appellant for construction of residential complex for giving it on rent to the employees of Income Tax department and therefore this service cannot be included in the definition of residential complex services. It is basically the case of one department taking the help of another ..... X X X X Extracts X X X X X X X X Extracts X X X X
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