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2015 (12) TMI 439 - CESTAT NEW DELHI

2015 (12) TMI 439 - CESTAT NEW DELHI - 2015 (40) S.T.R. 969 (Tri. - Del.) - Demand 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 t .....

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f 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 H .....

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ind Krishna Dixit, AR ORDER PER: R.K.SINGH Appeal has been filed against Order-in-Original dated 17.8.2009 in terms of which service tax demand of ₹ 57,31,718/- alongwith interest was confirmed under construction of complex service (section 65(30a)/(105) (zzzh) of Finance Act, 1994) for the period 13.09.2006 to 13.10.2008 and equal amount of penalty under sectuib 78 ibid was also imposed. 2. The appellant has contended that (i) it constructed housing complex for Haryana Housing Board and i .....

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ppression of facts as the figures were obtained from the Haryana Housing Board, therefore no penalty is called for and substantial part of demand is time barred. (v) benefit of reduced mandatory penalty should be extended. 3. Learned DR stated that it is a clear case of construction of residential complex for Haryana Housing Board and therefore the judgements in the case of Macro Mavel Projects Ltd. Vs.CST, Chennai and A.S.Sikarwar vs. CCE, Indore are not applicable to the facts of this case. He .....

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,875/- should not have been added for the computation of demand and abatement. As regards suppression, learned DR contended that the appellant had clearly suppressed the information and had not given the same inspite of being asked through several letters. Ld.DR also contended that cum tax benefit should not be granted because the amount received from the Haryana Housing Board did not include tax as Haryana Housing Board clearly stated that no tax was payable and the provision clearly existed in .....

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carpentry, fencing and railing, construction of swimming pools, acoustic applications or fittings and other similar services; or (c) repair, alteration, renovation or restoration of, or similar services in relation to, residential complex;] Section 65 (91a) residential complex means any complex comprising of - (i) a building or buildings, having more than twelve residential units; (ii) a common area; and (iii) any one or more of facilities or services such as park, lift, parking space, community .....

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rposes of this clause, - (a) personal use includes permitting the complex for use as residence by another person on rent or without consideration; (b) residential unit means a single house or a single apartment intended for use as a place of residence. Section (105) (zzzh) taxable service means any service provided or to be provided, to any person, by any other person, in relation to construction of complex. Explanation. - For the purposes of this sub-clause, construction of a complex which is i .....

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und plan of the complex constructed. 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 const .....

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struction 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 (32) STR 49 (Tri.-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 mentio .....

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