Home Case Index All Cases Service Tax Service Tax + AT Service Tax - 2022 (3) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2022 (3) TMI 592 - AT - Service TaxRefund of service tax - applicability of retrospective amendment under Rule 2A of Service Tax Valuation Rules - works contract service - composite contract for construction of complex and sale of units - HELD THAT:- There is no denial to the fact that while purchasing the different floors of a immovable property the appellants have been paying the Service Tax along with the demands which were raised by the construction company at the completion of each milestone. There is also no denial to the fact that the Hon’ble High Court of Delhi in Suresh Kumar Bansal case [2016 (6) TMI 192 - DELHI HIGH COURT] has held that Service Tax could not be levied on value of undivided share of land acquired by buyer of dwelling unit or value of goods which are incorporated in project by Developer. Perusal of Rule 2A of Service Tax Valuation Rules makes it clear that the said rule provides the mechanism to separately determine value of land and value of goods under a Works Contract Service. The gross consideration charged for construction of complex service by builder promoter of a project of a buyer would not only include the element of cost of Service Tax but also the value of undivided share of land which would be acquired by the buyer. In the present case admittedly the service provided is of not work contract service but is a simplicitor contract of construction of residential building. The impugned explanation to the extent that it seeks to include composite contracts for purchase of units in a complex within the scope of taxable service is set aside. It was held that if the concerned officer of respondent No. 1 shall examine whether the builder has collected any amount as service tax from the petitioners for taxable service as defined in Section 65(105)(zzzh) of the Act and has deposited the same with the respondent authorities, any such amount deposited shall be refunded to the petitioners with interest at the rate of 6% from the date of deposit till the date of refund. It is observed that Chartered Accountant certificate of the auditor of Emaar, the builder as annexed on record is sufficient to show that Emaar has duly paid the Service Tax for the period 2011-12 to 2017-18, which includes the period in question. Further it is also acknowledged that element of Service Tax has been borne by the appellant and the letter of Emaar dated 29.8.2019 as is available on record, shows that acknowledgement of Emaar to the said fact and it also conveys their no objection in favour of the appellant to claim the said refund. Appeal allowed - decided in favor of appellant.
|