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TMI Blog2009 (7) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... tax, the transaction in this case cannot be considered taxable. Therefore, all the appeals are allowed. However, the matter is remanded 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. - ST/30-33 and 46-57/2009 - A/1346-1361/WZB/AHD./2009 - Dated:- 3-7-2009 - Shri B.S.V. Murthy, Member (T) REPRESENTED BY : Shri Rahul Patel, Chartered Accountant, for the Appellant. Ms. M.I.J. Micheal, Jt. CDR, for the Respondent. [Order]. - Since the issue involved is same in all the appeals, even though different orders have been passed, a common order is being issued in respect of all the appeals. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 09 and Circular F. No. 332/35/2006/TRU, dt. 1-8-06 and also a letter issued by TRU immediately after introduction of the service in support of his contention that the service rendered by them is not liable to Service Tax. He also submitted that neither developer nor the society has a contractor or developer separately but residences are built and provided to members of societies directly. Such transaction was not intended to be taxed at all and taxable transactions were always between the developer and contractor. 4. Learned Jt. CDR, on the other hand, cites the decision of the Tribunal in case of Rohan Builders Ltd. v. CCE, Bangalore, 2009 (13) S.T.R. 56 (Tri-Bang.), in support of his contention that the development includes constructio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 29-1-09 which is relevant and is reproduced below : 3. The matter has been examined by the Board. Generally, the initial agreement between the promoters/builders/developers and the ultimate owner is in the nature of 'agreement to sell'. Such a case, as per the provisions of the Transfer of Property Act, does not by itself create any interest in or charge on such property. The property remains under the ownership of the seller (in the instant case, the promoters/builders/developers). It is only after the completion of the co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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