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TMI Blog2024 (6) TMI 392X X X X Extracts X X X X X X X X Extracts X X X X ..... ble to pay service tax prior to 01.07.2010 - The Tribunal in the case of M/S KRISHNA HOMES VERSUS CCE, BHOPAL AND CCE, BHOPAL VERSUS M/S RAJ HOMES [ 2014 (3) TMI 694 - CESTAT AHMEDABAD] in a similar issue has held that the demand of service tax against promoter/builder/developer cannot sustain for the period prior to 01.07.2010 - thus, the demand raised for advances received by the appellant for construction of residential projects is unsustainable. Levy of service tax - Construction of Residential Complex Services - amounts received by the appellant for additional works done for the existing projects - HELD THAT:- The appellant has submitted that the works carried out were composite in nature and not service simplicitor. The Commissioner ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... existing flats. 2. Show Cause Notice dated 07.10.2010 was issued to the appellant proposing to demand service tax under the category of Construction of Residential Complex Services . After due process of law, the Original Authority confirmed the demand, interest and imposed penalty. On appeal, the Commissioner (Appeals) upheld the same. Hence this appeal. 3. Ld. Counsel, Ms.Radhika Chandrasekar appeared and argued for the appellant. It is submitted that the appellant is a developer of residential projects. The appellant being a developer of residential projects is not liable to pay service tax for the period prior to 01.07.2010, as clarified by the Board Circular No.108/2/2009 dated 29.01.2009. The Ld. Counsel referred to the explanation un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal, the Commissioner (Appeals) allowed abatement. This would clearly establish that the works executed are composite contracts involving both supply of materials and rendition of service. It is prayed that the appeal may be allowed. 6. Ld. Authorised Representative, Shri R Rajaraman appeared for the department and reiterated the findings in the impugned order. 7. Heard both sides. 8. The first issue that arises for consideration is whether the demand of service tax on the advances received by the appellant for construction of residential projects is subject to levy of service tax, prior to 01.07.2010. The Board vide Circular No.108/2/2009 dated 29.01.2009 has clarified that Promoter/Builder/Developer is not liable to pay service tax prio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 as residence by such person . There is no dispute that the complex constructed by both the assessees in these appeals is covered by the definition of residential complex as given in Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se. 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 under any law for the time being in force) shall be deemed to be service provided by the builder to the buyer. 10. The said decision was followed by the Tribunal in the case of Pragati Edifice Pvt. L ..... X X X X Extracts X X X X X X X X Extracts X X X X
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