TMI Blog2018 (10) TMI 840X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 10.02.2012 clarified that prior to 01.07.2010 service tax is not chargeable from builders/developer. Prior to 01.07.2010 builders/developers are not liable to pay service tax for the Construction of Residential Complex Service and in the present case, the period involved is from 16.06.2005 to 31.01.2007 - penalty not maintainable. Appeal dismissed - decided against appellant-Revenue. - ST/271/2009-DB, ST/973/2010-DB, ST/1023/2010-DB - 21594-21596/2018 - Dated:- 10-10-2018 - Mr. S.S Garg, Judicial Member And Mr. P. Anjani Kumar, Technical Member For the Appellant : Mr. Pradyumna G.H., Advocate For the Respondent : Mr. K. Murali, Superintendent (AR) ORDER PER : S.S GARG The present appeal is directed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riginal dated 23.01.2009 wherein the service tax demanded in the show-cause notice was confirmed along with interest and penalties under Section 76 and 77 of the Finance Act were also imposed. Aggrieved by the said order of the Commissioner, the appellant preferred an appeal before CESTAT assailing that the demand was unsustainable in view of the clarification issued by the Board. Tribunal vide Final Order No. 1193/2009 dated 09.10.2009 remanded the case to the Commissioner with a direction to examine the issue in the light of Board s Circular No. 108/2/2009-S.T. dated 29.01.2009. After the remand, the Commissioner of Service Tax passed De novo Order-in-Original dated 19.02.2010 and held that the appellants are liable to pay service tax as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter construction (except in cases for which no sum is received from or on behalf of the prospective buyer by the builder or a person authorized by the builder before the 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 builder to the buyer. He further submitted that after the explanation was added by Finance Act 2010 levy of Service Tax on Construction of a Complex by a builder or a developer became taxable only from 01.07.2010. He further submitted that the Board Circular No. 151/2/2012 ST dated 10.02.2012 wherein it is made clear in para 2.1(A) that construction service provided by the builder/developer for the per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sidential Complex in terms of the Development Agreements entered with land owners and prospective buyers. The period of dispute is from 16.06.2005 to 31.01.2007. Further we find that an explanation was added for the Finance Act 2010 in Section 65(105) (zzzh) of the Finance Act 1994 whereby it was clarified that levy of service tax on construction of complex by builder will be taxable only from 01.07.2010 and further the Board vide its Circular dated 10.02.2012 clarified that prior to 01.07.2010 service tax is not chargeable from builders/developer. Further we find that this issue has been considered by the Division Bench of this Tribunal in the case of CCE Vs. U.B. Construction (P) Ltd. cited supra wherein the Tribunal in para 5 has observe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. In view of the above, though in view of the Apex Court judgment in the case of M/s. Larsen Toubro Limited and Others v. State of Karnataka Others (supra), the agreements entered into by a builder/promoter/developer with prospective buyers for construction of residential units in a residential complex against payments being made by the prospective buyers in instalments during construction and in terms of which the possession of the residential unit, is to be handed over to the customers on completion of the residential complex and full payment having been made, are to be treated as works contracts, it has to be held that during the period of dispute, there was no intention of the Government to tax the activity in terms of such con ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
