TMI Blog2012 (8) TMI 814X X X X Extracts X X X X X X X X Extracts X X X X ..... PB) - Dated:- 14-9-2011 - Ms. Archana Wadhwa, Shri Rakesh Kumar, JJ. REPRESENTED BY : Shri S. Mukherjee, C.A., for the Appellant. Shri Sonal Bajaj, SDR, for the Respondent. [Order per : Rakesh Kumar, Member (T)]. The appellant are engaged in the business of real estate development and construction residential houses. The appellant owned the land out of which plots were sold to their customers and duplex type residential houses were constructed on those plots as per the appellant s agreement with their customers. The department was of the view that the appellant have provided the service of construction of complex taxable under Section 65(105)(zzzh) read with Section 65(30a) and 65(91a) of the Finance Act, 1994. It is o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y and not of service and, hence, no service tax is attracted, and that in this regard, he relies upon the judgment of the Tribunal in the .case of Magus Construction Pvt. Ltd. v. Union of India reported in 2008 (11) S.T.R. 225 (Gau.). He also cited the Board s Circular No. 332/35/06-TRU dated 1-8-2006, wherein it has been clarified that in a case where a builder, promoter, developer or any such person builds a residential complex having more than 12 residential units by engaging a contractor for construction of such residential complex, the contractor in his capacity as provider of taxable service to the builder/promoter/developer shall be liable to pay service tax on the gross amount charged for the construction service so provided and tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case of Magus Construction Pvt. Ltd. v. Union of India (supra) has held that construction of residential complex by a builder/developer against agreement for purchase of flat with the customers is not service, but is an agreement for sale of immovable property. Hon ble Punjab Haryana High Court in the case of G.S. Promoters v. Union of India (supra) cited by the learned SDR has only upheld the validity of the explanation added to Section 65(zzzh) by the Finance Act, 2010. Moreover, we find that it is only w.e.f. 1-7-2010, that explanation was added to Section 65(zzzh) of the Finance Act, 1994 providing that for the purpose of this sub-clause, construction of a complex which is intended for sale; wholly or partly, by a builder or any pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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