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2019 (12) TMI 641 - AT - Service TaxRefund of service tax - appellant entered into agreement with the developer of residential complex for purchase of flat - declared services or not - refund denied by the lower authorities on the ground that the appellant’s agreement with the Developer was on 13.03.2015 whereas occupation certificate was given by the competent authority i.e. BMC on 07.09.2015, the service was declared service, and refund cannot be granted. HELD THAT:- The definition of declared services lays down the criteria of issuance of completion certificate by the competent authority. There is no powers or jurisdiction vested with the service tax authorities to dilute the said definition and to go the reasons for delay in issuance of completion certificate - As such the appellant’s contention that the said certificate was not issued on account of non-functioning or delayed functioning of the State Environment Appraisal Committee cannot be appreciated. As such on the said ground, there are no merit in the contention of the appellant. Appellant also relies upon the Hon'ble Supreme Court judgement in M/S. LARSEN & TOUBRO LIMITED & ANOTHER VERSUS STATE OF KARNATAKA & ANOTHER [2013 (9) TMI 853 - SUPREME COURT], holding that the activity of construction undertaken by the developer would be works contract only from the stage the developer enters into a contract with the flat purchaser. The value addition made to the goods transferred after the agreement is entered into with the flat purchaser can only be made chargeable to tax by the State Government - However, Learned counsel fairly agrees that the said decision was not referred to before the Commissioner (Appeals) or the adjudicating authority and as such their comments on the same are not available. Matter remanded to the original adjudicating authority for consideration of the said decision of the Hon'ble Supreme Court and to re-decide the matter accordingly - appeal allowed by way of remand.
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