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TMI Blog2024 (6) TMI 443X X X X Extracts X X X X X X X X Extracts X X X X ..... e tax, the officers of the department conducted investigation. Upon investigation, it was found that the appellant has not discharged service tax on the taxable income for the period from October 2007 to December 2009, January 2010 to September 2010 and October 2010 to September 2011. 2. Show Cause Notices dated 18.10.2010, 12.04.2011 and 21.10.2012 for the period from October 2007 to December 2009, January 2010 to September 2010 and October 2010 to September 2011 respectively were issued to the appellant proposing to demand service tax under the category 'Construction of Residential Complex Services', along with interest and also for imposing penalty. After due process of law, the Original Authority confirmed the demand, interest and impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble to discharge service tax under the category 'Construction of Residential Complex Services for the period October 2007 to September 2011. On perusal of the SCN, it is noted that the appellant had entered into Joint Venture agreements with the land owners for the Construction of Residential Complex Services. It is clear from the above that the appellant is a Promoter/Builder of residential projects and as per the clarification of the Board Circular vide No.108/2/2009 dated 29.01.2009, the demand raised against the appellant for Construction of Residential Complex Services is unsustainable. 8. The issue as to whether a Promoter/Builder is liable to pay service tax, was considered by the Tribunal in the case of M/s.Krishna Homes Vs. Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; (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 65(91a). There is also no dispute that both the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." 9. The said decision was followed by the Tribunal in the case of Pragati Edifice Pvt. Ltd Vs. Commissioner of Central Excise & Ser ..... X X X X Extracts X X X X X X X X Extracts X X X X
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