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TMI Blog2024 (4) TMI 331X X X X Extracts X X X X X X X X Extracts X X X X ..... se was taken up for adjudication and, per Order in Original No. 03/2019 (RF/RB)-Legacy dated 14.6.2019, the adjudicating authority rejected the claim for refund. It was the case of the original authority that the service tax was paid towards works contract service provided by the developer, which was very much in order. 3. Aggrieved by the above order, the appellant preferred an appeal before the first appellate authority and the FAA after hearing the appellant has vide Order in Appeal No. 274/2019 (CTA - II) dated 25.9.2019 rejected the appeal, thereby upholding the order of rejection. In the said order in appeal, the first appellate authority has held that the appellant was only a recipient of service, the construction activity was started by the developer from 31.5.2013, invoice was raised on 24.9.2015 and hence, in terms of point of taxation rules, 2011 the service was provided only after 01.07.2012. The FAA has also noted from the invoice issued by the developer that even the state VAT was also paid and that the service tax was consequently paid at the applicable rate of service contract. The FAA thus concluded that the claim of the appellant that the construction carried out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... through which land /developmental right were given to the developer shall be the date for determining the tax liability, if any, on the alleged construction service. It is their further case that even the definition of Residential complex is not satisfied since only a few, i.e., less than 12 units/flats were constructed and hence, for any levy, it should be a residential complex comprising more than 12 residential units/flats and therefore, there was no liability to service tax. Even otherwise, the development and construction of residential units was intended for personal use and hence, by virtue of clarification of CBEC circular No. 108/2/2009-ST, the construction for personal use would fall within the exclusion portion of the definition of residential complex as defined under section 65(91)(a) of the finance act 1994. 11. Reliance has been placed on a number of Orders of various CESTAT Benches in support. In the case of Ramaniyam Real Estates Pvt. Ltd. Vs. Commissioner of Service Tax, Chennai reported in 2018-TIOL-2560-CESTAT-MAD, Chennai Bench of CESTAT while dealing with a more or less similar issue, has examined the scope and applicability of CBEC Circular No.151/2/2012-ST ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elling unit in a residential complex at any stage of construction (or even prior to that) and who makes construction linked payment. The "Construction of Complex" service has been defined under Section 65 (105)(zzzh) of the Finance Act as "any service provided or to be provided to any person, by any other person, in relation to construction of a complex". The "Construction of Complex" includes construction of a "new residential complex". For this purpose, "residential complex" means any complex of a building or buildings, having more than twelve residential units. A complex constructed by a person directly engaging any other person for designing or planning of the layout, and the construction of such complex intended for personal use as residence by such person has been excluded from the ambit of service tax. 2. A view has been expressed that once an agreement of sale is entered into with the buyer for a unit in a residential complex, he becomes the owner of the residential unit and subsequent activity of a builder for construction of residential unit is a service of "construction of residential complex" to the customer and hence service tax would be applicable to it. A contrary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses may be disposed of accordingly. Any decision by the Advance Ruling Authority in a specific case, which is contrary to the foregoing views, would have limited application to that case only. In case any difficulty is faced in implementing these instructions, the same may be brought to the notice of the undersigned." 5.3 From a combined reading of the provisions of Section 65 (105) (zzzh) of the Act as it was in force during the impugned period and the two Board"s circulars dt. 29.01.2009 and 10.02.2012, we are of the considered opinion that there cannot be any service tax liability in respect of the construction of flats provided by the appellants to the erstwhile 45 flat owners in lieu of their relinquishing their undivided share of land. 5.4 While arriving at these conclusions, we also draw sustenance from the decision of the Tribunal vide Final Order No.A/30559/2018 dated 11.05.2018 in the case of Vasantha Green Projects Vs CCT Rangareddy GST [Appeal No.ST/31095/2017], where on an identical issue it was held that the demand is not sustainable. The relevant portion of the order is reproduced as under : "7. It has to be construed, in the above factual matrix, that constru ..... X X X X Extracts X X X X X X X X Extracts X X X X
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