TMI Blog2018 (9) TMI 1066X X X X Extracts X X X X X X X X Extracts X X X X ..... Construction of Residential Complex Services - appellant has constructed two complexes, namely, Nelson Square and Krishna Sarathy - Held that:- In the present case, the appellant has not engaged any other person for construction and construction activity was carried out on his own. The land belonged to him as he had purchased the right/share of the land from M/s. Nelson Type Foundry Pvt. Ltd. Similar is the situation in the case of the Krishna Sarathy Residential Complex also. By the joint development agreement entered by the appellants with the land owners, part of the undivided share in the land was handed over to the appellants and, in turn, it was agreed to hand over certain portions of constructed area (flats) to land owner - Though ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epair Services. In regard to the demand relating to Commercial or Industrial Construction Service, it is submitted that the building was constructed for the own use of the appellant and the building is used as office of the appellant herein. That since the construction services are carried out for self-use, there is no liability for payment of service tax. 2.1 With regard to the demand on construction of Residential Complex, it is submitted by him that there were two projects, viz; Krishna Sarathy and Nelson Square. The appellants entered into a development agreement on 29.08.2003 with the land owner, namely, M/s. Nelson Type Foundry Pvt. Ltd., Chennai, to develop the property. The land owners agreed to sell away the certain undivided sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d would amount to service to oneself and is not subject to levy of service tax, as clarified by the Board Circular No. 108/2/2009 and ST dt. 29.01.2009. He explained that in certain cases, the appellants have received the consideration for the flat in instalments. These payments received as advance cannot attract the levy of service tax prior to 01.07.2010. An explanation in Clause 65(105)(zzzh) was added which made the amounts received as advance prior to issue of completion certificate subject to levy of service tax. In the present case, the period involved is prior to 01.07.2010 and, therefore, even if appellant received advance payments, the demand cannot sustain being prior to 01.07.2010. He argued that since the land always belonged t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be set aside, which we hereby do. 7. The period involved is from 10.09.2004 to 30.06.2008. The demand for the period prior to 01.06.2007 cannot sustain as per the decision laid by the Hon ble Apex Court in the case of Larsen and Toubro Ltd. (supra), and requires to be set aside, which we hereby do. 8. The issue that remains for analysation is the demand in respect of Construction of Residential Complex Services. The appellant has constructed two complexes, namely, Nelson Square and Krishna Sarathy. 9. The Department has relied heavily upon the agreement entered with prospective buyer to allege that the undivided share of land (UDS) has been transferred to the prospective buyer and, therefore, since the land does not belong to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was handed over to the appellants and, in turn, it was agreed to hand over certain portions of constructed area (flats) to land owner. The flats which are handed over to the land owners were for their own use as a consideration for the undivided share of land. Though the appellants may have received payments prior to completion of the flats from prospective buyers, these amounts do not attract service tax prior to 01.07.2010 for the reason that the explanation to Section 65(105)(zzzh) was added only on 01.07.2010. The land remained in the ownership of the appellants till completion of construction of flat. Thereafter, sale deed was executed to the buyer, whereby right/title/interest in undivided share of land as well as the flat is transfe ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
