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2015 (12) TMI 439 - AT - Service TaxDemand of service tax - construction of complex service - section 65(30a)/(105) (zzzh) - penalty under section 78 - Held that:- The ground plan clearly shows that the complex has more than 12 units. The ground plan also clearly shows and states that it has common community hall, common parking area, and Common Park. We have seen photographs of the complex which make it evident that the complex has buildings having more than 12 residential units. Thus the complex constructed clearly satisfies the definitions of residential complex given in section 65 (91a) ibid and the service of construction of complex (defined in section 65 (30a)/105)/(zzzh) - impugned service clearly gets covered under construction of complex service liable to service tax. However, as conceded by learned DR, the demand has to be worked out on the amount of ₹ 8,80,52,533/- after giving 67% abatement without adding the value of free supplies in the light of the judgment in the case of Bhayana Builders Pvt. Ltd. Vs. CST, Delhi- [2013 (9) TMI 294 - CESTAT NEW DELHI (LB)]. As regards cum- tax benefit, learned DR opposed it on the ground that the amount received was not inclusive of service tax. In this regard, it is to be mentioned that Haryana Housing Board is not liable to pay any amount towards service tax in respect of the present case. This inference is supported by the fact that subsequent contracts with Haryana Housing Board clearly make provision for payment of service tax separately. In the circumstances, we are of the view that in view of clear provision of section 67 (2) ibid cum tax benefit is to be extended to the appellant. - Decided partly in favour of assessee.
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