TMI Blog2024 (3) TMI 351X X X X Extracts X X X X X X X X Extracts X X X X ..... idential complex/building having not more than 12 residential units, is not sought to be taxed under service tax. For the levy it should be a residential complex comprising of more than 12 residential units. It is evident that the law makers did not want construction of individual residential units to be subject to levy of service tax. There are no merit in these appeals by Revenue - appeal dismissed. - HON BLE Mr. ANIL CHOUDHARY , MEMBER ( JUDICIAL ) And HON BLE Mr. A. K. JYOTISHI , MEMBER ( TECHNICAL ) Shri Anukathir Surya , Authorised Representative for the Appellant Shri S. Suribabu , Advocate for the Respondent ORDER [ ORDER PER : ANIL CHOUDHARY ] As the respondent assessee is engaged in construction sale of flats, villas and plots. In this appeal by Revenue, the issue involved is whether vide impugned Order-in-Original, the Learned Commissioner have rightly dropped the demand/proceedings vide Show Cause Notice Dated 20.04.2015 by which it was proposed to demand service tax on the row houses constructed in a gated community. 2. The brief facts are - respondent assessee is registered with the service tax department for payment of service tax under the head Works Contract Serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... more dwelling units. So accordingly, they are not liable to pay service tax. 6. The Learned Commissioner observed that with effect from 01.07.2012, when negative list regime was introduced, the activity of appellant is covered under Works Contract Service as per Section 66E read with Section 65B(54). It is further observed that vide serial no. 14(b) of Notification No. 25/2012-ST the construction of a Single Residential Unit, otherwise than as a part of residential complex, has been exempted. Further, residential complex for the purpose of the exemption notification has been explained as means any complex comprising of a building or buildings having more than 1 single residential unit. 7. Further, for the period prior to 30.06.2012, it was held, that where construction of the building is intended for personal use of the owner, same is not taxable. In the instant case, construction activity has been rendered after the transfer of ownership of the plot to the buyer through sale deed. Thereafter separate construction agreement have been entered, after the change of the ownership. Further observed that all the residential units are constructed with prior approved plan in the name of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts. It is evident that the law makers did not want construction of individual residential units to be subject to levy of service tax. 10. The said ruling of Tribunal have been upheld by Hon ble Supreme Court as reported in [2012 (25) STR J154 (SC)]. Accordingly, the Learned Commissioner was pleased to hold that the appellant is not liable to service tax in the facts and circumstances for the period prior to 01.07.2012 as well as after 01.07.2012. Accordingly, dropped the proceedings. 11. Being aggrieved, Revenue is in appeal on the ground(s) interalia that respondent assessee have developed 2 projects, i) Prestige County having 300 residential plots and ii) CSK Green Villas having 1500 plots/villas as per the information available on internet. Further in the said complex, various common facilities are available like garden, recreation facility, 24 hour power backup, common security, club service, swimming pool, gymnasium, air water harvesting etc. 12. Further urges that the purchaser(s) of plot is entitled to free membership of the common amenity of swimming pool and club house in the gated community. 13. The respondent has prepared the construction agreement in two sets of even or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther urged with reference to construction agreement dated 27.04.2011 entered into by the assessee with one Shri China Kotya Naik, approval of layout have been obtained from HMDA vide Letter dated 19.07.2009 in respect land measuring 71 acres 19 Guntas in respect of CSK Green Villa Project. Further, from the construction agreement dated 23.10.2012 entered between the respondent with Shri Venkat Appa Rao, the layout plan was approved from the Gram Panchayat in respect of M/s Prestige County Project. Section 65(91a) (with respect to period upto 13.06.2012) provides for common amenities located within the layout of premises approved by the competent authority, but not about the building plan. 18. It is further urged that exemption under Clause 14(b) of Notification 25/2012 exempts construction of a single residential house or unit and thus is not available to a house/unit, which is part of a residential complex. 19. It is further urged that the ruling of M/s Macro Marvel Project is not applicable in the facts of the instant case as the said case only deals with the construction of individual houses, and it is not a case of construction of group of individual houses with common faciliti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Pvt Ltd., the Allahabad Bench also held that where individual houses are constructed in a gated community, the same is excluded under the definition in Section 65(91a) as reported at [2018 (15) GSTL 345]. The said ruling was also upheld by Apex Court against Revenue and the appeal was dismissed, reported at [2018 (15) GSTL J120 (SC)]. Accordingly, prays for dismissing the appeal of Revenue. 23. Having considered the rival contentions, we find that there is no significant change in the definition of residential complex as defined in Section 65(91a) of the Act both before and after 01.07.2012. Admittedly, the Respondent have sold developed plots to the buyers. Thereafter they have entered into agreement with the buyer/owner of plot to construct single house or residential unit. The house plan is also approved in the name of owner/buyer of the plot. Thus the activity is excluded or exempt both before and after 01.07.2012. Further, we find that the said issue is no longer res integra, in view of the ruling of this Tribunal in Macro Marvel Projects Ltd., Baba Construction (supra) and which have been approved by the Apex Court. 24. In view of our findings and observations, we find no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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