TMI Blog2014 (1) TMI 1002X X X X Extracts X X X X X X X X Extracts X X X X ..... n this case and the clarifications issued by the CBEC are not applicable to the facts of the present case - Conditional Stay granted. - ST/S/40247-40248/2013 and ST/40297-40298/2013 - - - Dated:- 6-8-2013 - P K Das and Mathew John, JJ. For the Appellant: Ms Radhika, Adv. For the Respondent : Shri Parmod Kumar, JC (AR) JUDGEMENT Per: Mathew John: Both the stay petitions arise from the same impugned orders having two numbers for the same order because it disposed of two show cause notices on the same issue. Therefore, both the stay petitions are taken up together for disposal. 2. The applicant is engaged in the business of construction of residential complex. They had constructed two residential complexes namely SIS D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IS Safaa: The project was started in 2008 and consists of 126 residential units situated on GST Road at Urapakkam. Undivided share of land (UDS) was sold by the land owner/s to the clients through the applicant who acted as Power of Attorney holder for the land owner. 3.3 In respect of both the above projects, based on construction agreement entered between the assessee and every client, residential flats were constructed for which the assessee received amount exclusively for construction. The buildings were designed by the assessee and construction work was executed. 4. Thus the Undivided Share (UDS) of the land was first sold to the customers and thereafter, construction of residential complex was undertaken on such property of whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of Commissioner of Income Tax Vs. M/s Sanghvi and Doshi Enterprises in TC (A) Nos. 581 and 582 of 2011 decided Hon Madras High Court on 01-11-2012, wherein the Hon'ble Madras High Court has decided that the developers executing such projects take business risks and they are eligible for deduction under Section 80IB (10) of the Income Tax Act, 1961. It is argued that the activity of the applicant is construction as a business involving risks and such activity cannot be considered as a service and therefore demand for service tax is not sustainable. Therefore, she prays that the appeal may be admitted without insisting on pre-deposit. 6. Opposing the prayer, the Ld. AR for the Revenue submits that the circulars issued by the CBEC are a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (10) of the Income Tax Act, 1961, and the question whether service provider and service recipient exist in a situation of this type was not the issue in dispute. At any rate in this appeal the dispute is only about cases where UDS was sold and then construction done. When UDS is sold and construction is undertaken for the person to whom UDS is sold the construction activity is done for a consideration specified in an agreement and the question of business risk gets diminished except in cases of default. Such default is more or less like non receipt of payments for any service done and there is hardly any new aspect to be considered. 9. So he pleads the applicants should be put to reasonable terms to make pre-deposit for admission of their ..... X X X X Extracts X X X X X X X X Extracts X X X X
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