9911796707
TMI Blog2012 (6) TMI 420X X X X Extracts X X X X X X X X Extracts X X X X ..... vour of the assessee. First appellate authority is of the view that the explanation added to sub clause zzzh of clause (105) of Section 65 of the Finance Act, 1994 will have retrospective effect and appellant is liable to discharge the service tax liability under the category of commercial or industrial construction services. 3. Ld. counsel would submit that the explanation which was added was effective from 1.7.10 and any agreements entered prior to 1.7.10 by the appellant and amounts received in advance is not taxable. For this proposition he would rely upon the Board's circular dated 1.7.10 and also stay order of the coordinate bench of the Tribunal in the case of Mothisham complexes (P) Ltd. - 2011 (21) STR 551 (Tri. - Bang.). & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xplanation added to sub-clause (zzq) and a similar Explanation added to sub-clause (zzzh) of clause (105) of Section 65 of the Finance Act, 1994. One of these explanations is reproduced below:- "Explanation: For the purposes of this sub-clause, the construction of a new building which is intended for sale, wholly or partly, by a builder or any person authorised by the builder before, during or after construction (except in cases for which no sum is received from or on behalf of the prospective buyer by the builder or the person authorised by the builder before grant of completion certificate by the authority competent to issue such certificate under any law for the time being in force) shall be deemed to be service provided by the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons. He has also claimed support from the Tribunal's decision in the case of Rohan Builders Ltd. v. Commissioner of Service Tax, Bangalore [2009 (13) S.T.R. 56 (Tri. - Bang.)] wherein the appellant-company was found to have undertaken development of property through contractors for construction of residential complex and it was held to have rendered taxable service defined under Section 65(105)(zzzh) read with Section 65(30a) of the Finance Act, 1994. 5. After considering the submissions, we have found substance in the legal plea made by the learned counsel. Learned Jt. CDR has fairly conceded the fact that, before completion of construfction of building complex, advances were received by the appellant from the prospective buyers. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x on a part of the taxable value. 6. In the aforesaid circumstances, there shall be waiver of pre-deposit and stay of recovery in respect of the amount of service tax and penalty. The stay application is allowed." 7. The legal submissions made by the ld. SDR as to the validity of the explanation, can be considered at the time of final disposal of the appeal. 8. As in an identical situation an unconditional stay has been granted by the co-ordinate bench of Tribunal, we find that the appellant has made out a prima-facie case for the waiver of pre-deposit of amounts involved. Accordingly, application for the waiver of pre-deposit of the amounts involved is allowed and recovery thereof stayed till the disposal of appeal. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
