TMI Blog2019 (1) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... liable for service tax upon his selling UDS. There is no service tax liability on the appellant - appeal allowed - decided in favor of appellant. - Appeal No.: ST/00396 & 00397/2012 - Final Order No. 43164-43165/2018 - Dated:- 28-12-2018 - Shri Madhu Mohan Damodhar, Member (Technical) And Shri P. Dinesha, Member (Judicial) Shri. Prasanna Krishnan V., Consultant for the Appellant Shri. K. Veerabhadra Reddy, ADC (AR) for the Respondent ORDER Per P. Dinesha : The assessee is registered under the category of Construction of Complex Service. The appellant procured land from land owners, after obtaining necessary permission from different authorities concerned and after identifying prospective buyers, they ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct till the date of payment of the above demand. (iii) Penalty under Sections 76, 77 and 78 of the said Act should not be imposed on them for the contravention of the Act and Rules mentioned above with an intention to evade payment of Service Tax. 2.2 Another Show Cause Notice No. 525/2010 dated 27.09.2010 was issued to the appellants for the period from April 2009 to June 2010 under which an amount of ₹ 12,83,912/- was demanded towards service tax along with proposition of interest under Section 75 ibid. and penalty under Section 76 ibid. After due process of law, Orders-in-Original No. 02 03/2012 dated 26.03.2012 came to be passed by the Commissioner confirming the above proposals, against which the present appeals have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s held as under : 12. After analysing the implication of the above Circular as also various pleadings made by the parties, the Hon ble Principal Bench inter alia held that there was no dispute that the complex constructed by the appellant in those appeals were covered by the definition of residential complex as given in Section 65 (91a); that there was also no dispute that the appellant had engaged a contractor for construction of the complexes; that the Board had clarified in the Circular (supra) that in case where a builder, promoter or developer builds a residential complex having more than 12 residential units by engaging a contractor for construction of such residential complex, the contractor shall be liable to pay service tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g or after construction; that the Explanation was specifically legislated upon to expand the concept of taxable service; that prior to the explanation, the view taken was that since a mere agreement to sell does not create any interest in the property and the title to the property continues to remain with the builder, no service was provided to the buyer; that the service, if any, would be in the nature of a service rendered by the builder to himself; that the explanation expands the scope of the taxable service, provided by builders to buyers pursuant to an intended sale of immovable property before, during or after the construction and therefore the provision is expansive of the existing intent and not clarificatory of the same; and is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... excluded construction undertaken for personal use including permitting the complex use as residence by another person, that exclusion covered the construction activity of the assesse and thus the service tax liability would not sustain. 15. From a perusal of materials on record vis-a-vis the pleadings as also the above judgments/orders of Tribunals, it appears to be clear that there is no service tax liability. According to the Ld. DR, it is matter of concern that the appellant by entering into agreement for selling only UDS is trying to escape tax liability, say, under State Registration Act or under other law for the time being in force. But with due respects, that is not a taxable event to be brought under service tax net. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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