9911796707
TMI Blog2024 (6) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... turns filed by the appellant, it was noted that the appellant has paid service tax upto January 2009. However, they did not pay the service tax on the taxable value realized from customers from January 2009 onwards. It appeared that they stopped paying service tax with effect from February 2009 consequent to issuance of CBEC circular No.108/2/2009-ST dt. 29.01.2009. The Department was of the view that the services provided by the appellant being construction of residential complexes falls under 'Works Contract Service' and that the appellant is required to pay service tax for the period from 1.2.2009 to 30.09.2009. Show cause notice was issued to the appellant proposing to demand service tax along with interest and for imposing penalties. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l in the case of Krishna Homes Vs CCE Bhopal - 2015 (34) STR 881 (Tri.-Del) to argue that the demand raised against the promoter / builder / developer for construction of residential complexes was set aside after referring to the Board's circular (supra). The said circular clarified that the builder / promoter / developer is not liable to pay service tax for construction of residential complexes. Ld. Consultant prayed that the appeal may be allowed. 5. Ld. A.R Shri R. Rajaraman appeared for the Department. The findings in the impugned order was reiterated. 6. Heard both sides. The issue that arises for consideration is whether the demand raised under 'Works Contract Service' against the appellant who is promoter / developer for the period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar services in relation to, residential complex". The expression residential complex was defined in Section 65(91a) of the Finance Act, 1994 as any complex comprising of - "(i) a building or buildings, having more than twelve residential units; (ii) a common area; and (iii) any one or more of facilities or services such as park, lift, parking space, community hall, common water supply or effluent treatment system, located within a premises and the layout of such premises is approved by any authority under law for the time being in force, but does not include a complex which is constructed by a person directly engaging any other person for designing or planning of the layout, and the construction of such complex is intended for personal use ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any other person than in such cases, in absence of the service provider and service recipient relationship, the question of providing taxable service to any person by any other person does not arise. W.e.f. 1-7-2010 an explanation was added to Section 65(105)(zzzh) which was as under :- "Explanation. - For the purposes of this sub-clause, the construction of a 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 (except 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the builder to a buyer where there is an intended sale between the parties whether before, during or after construction; that the 'Explanation' was specifically legislated upon to expand the concept of taxable service; that prior to the explanation, the view taken was that since a mere agreement to sell does not create any interest in the property and the title to the property continues to remain with the builder, no service was provided to the buyer; that the service, if any, would be in the nature of a service rendered by the builder to himself; that the explanation expands the scope of the taxable service, provided by builders to buyers pursuant to an intended sale of immovable property before, during or after the construction and th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
