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2015 (2) TMI 706 - HC - Service TaxService tax on builders - Construction of residential complex services - Commercial and industrial construction services - setting aside assessment order - Held that:- Learned Advocate Shri Bhoot as also learned Advocate Shri Mirza have their respective contention on paragraph no. 3 of Circular No. 108/02/2009-ST dated 29/01/2009. However, impugned order does not consider the fact whether the petitioner had during relevant period executed any sale deed or not. If concept of 'self service' is attracted in case of petitioner, the petitioner may not be liable to pay any tax under the head service tax. Similarly other factors taken note of in paragraph 3 of circular need to be looked into by the assessing authority. Advocate Shri Mirza submitted that this circular issued in 2009 cannot be corelated with facts looked into the impugned order. We find that the circular only recognizes legal position and does not lay down any new law. It explains and interprets an existing provision. The contention that it cannot operate retrospectively is erroneous. It is interpretation of legal position and it can always be applied to the facts and events at hand. The impugned order does not show any consideration of any sale deed executed by petitioner in favour of its customers or clients. There is no application of mind as required in paragraph no. 3 of CBEC circular (supra). As such, it can be seen that said order of assessment is incomplete. Current demand and assessment order set aside. - Matter remanded back to deal with assessment proceedings before competent officer. - Writ petition is partly allowed in favour of assessee.
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