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TMI Blog2025 (1) TMI 842X X X X Extracts X X X X X X X X Extracts X X X X ..... tificate were issued by BMC without there being any completion certificate. But the clarification cannot be said to confine only to BMC as it clarifies the provision and hence we have no doubt in holding that the clarification is equally applicable on the Vasai-Virar Municipal Corporation as well, since the said clarification is qua the provision of Finance Act, 1994 which is applicable on everyone whether it is BMC or any other Municipal Corporation. In the case in hand the Occupancy Certificate is not disputed and its issuance by Vasai-Virar Municipal Corporation is also an admitted fact. The Revenue i.e. the appellant herein is not casting any doubt on the said certificate and their only concern is that the said Occupancy certificate has not been issued by BMC but by a different Municipal Corporation, therefore the clarification issued by Ministry of Finance will not be applicable which, in our view, is totally unfounded. The expression used in Section 66E(b) ibid is after issuance of completion certificate which, in our view, can t be limited to only the completion certificate - it can be said that the pre-condition for issuance of occupancy certificate is the completion of bui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they have not received Completion Certificate from the competent authority in respect of the said residential complex till 31.3.2014 i.e. last day of the period covered under audit. For these alleged irregularities the department issued a show cause notice dated 19.10.2015 to the respondent as to why:- i) Service Tax totally amounting to Rs. 1,15,37,316/- (Rupees one crore, fifteen lakh, thirty seven thousand, three hundred and sixteen only) inclusive of Education cess and Higher Education cess, should not be demanded and recovered from them under proviso to Section 73 (1) read with Section 68 of Chapter V of the Finance Act, 1994, read with Rule 6 of the Service Tax Rules, 1994, for the period from May 2013 to March 2014. ii) interest at appropriate rate(s) on the amount of Service Tax not paid should not be recovered from them under section 75 of the Finance Act, 1994. iii) penalty should not be imposed upon them under the provisions of Section 77 of the Finance Act, 1994 for contravention of various provisions of Finance Act, 1994 and Rules made thereunder, as discussed in the foregoing paras; and iv) penalty should not be imposed upon them under the provisions of Section 78 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to be occupied. He accordingly prayed for setting aside the impugned order. 5. Per contra learned Chartered Accountant appearing for the respondent-assessee prayed for dismissal of the appeal filed by revenue. According to learned Chartered Accountant, in the Mumbai Metropolitan Region, which includes Municipal Corporation of Greater Mumbai, Thane, Kalyan, Navi Mumbai, Ulhasnagar and other areas, the process for building completion and occupancy is governed by the Municipal Corporation Act, which empowers a licensed surveyor or an individual approved by the Commissioner for giving the building completion certificate and after getting the said certificate, the Commissioner inspected the concerned building or get it inspected and thereafter issues occupancy certificate if the said building is constructed in accordance with the relevant laws/byelaws and sanctioned plans. The said certificate confirms that the construction of the building is complete and the same is ready for occupation. 6. We have heard learned Authorised Representative appearing for Revenue and learned Chartered Accountant on behalf of the respondent and perused the case records including the written submissions/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the issuance of occupancy certificate by the Brihanmumbai Municipal Corporation (BMC) the sale of flats/dwelling etc. is mere transfer of title in immovable property and does not amount to any service and hence falls outside the purview of Section 65B (44) of the Finance Act, 1994. The press release is confined to the cases pertaining to BMC as it has been issued in response to a representation made by the Real Estate Developers of Mumbai to the Ministry of Finance claiming exemption in cases where the Occupancy Certificate were issued by BMC without there being any completion certificate. But the clarification cannot be said to confine only to BMC as it clarifies the provision and hence we have no doubt in holding that the clarification is equally applicable on the Vasai-Virar Municipal Corporation as well, since the said clarification is qua the provision of Finance Act, 1994 which is applicable on everyone whether it is BMC or any other Municipal Corporation. 7. Neither we have been shown nor we want to subscribe to the idea that different parameter/ procedures can be adopted for BMC and other Municipal Corporations around BMC while interpreting the scope of occupancy certific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew, can t be limited to only the completion certificate. It is the prevailing practice that when a building is constructed as per the building approved plans and meets other building standards like distance from the road, the height of the building, etc., the local authorities issued a Completion Certificate and after getting the completion certificate, the builder can obtain the Occupancy Certificate from the concerned authorities. Therefore in order to obtain an Occupancy Certificate from the Municipal Corporation a completion certificate issued by the licensed surveyor/ architect is required to be furnished. The Commissioner or any other competent authority of Municipal Corporation can refuse to give the occupancy certificate if upon inspection of the building he finds that there is any deviation from the sanctioned plan or there is any contravention of any provision of Municipal Corporation Act or the relevant bye-laws. Therefore it can be said that the pre-condition for issuance of occupancy certificate is the completion of building and its inspection by Commissioner of concerned Municipal Corporation being the competent authority or anybody on his behalf. 9. Had this been no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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