9911796707
TMI Blog2019 (4) TMI 1690X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner, Service Tax Division-V, Delhi-I, rejecting the Refund of Service Tax paid on purchasing a ready flat, an immovable property, on payment of composite price to Builder, under section 11 (B)(2)(e) of the Central Excise Act, 1944 made applicable to Chapter V of Finance Act, 1994 (as amended up to date) amounting to Rs. 2,35,143/-. 2. The Appellant had purchased a flat from M/s. Gaursons Promoters Pvt. Ltd towards allotment of a residential apartment No. 68, Ground Floor, Brahmaputra Tower, Gaur City-2, GH-03, Sector 16C, Greater Noida (West), U.P. vide an Allotment letter dated 01.04.2016 Ref. No. GC-10/68/Mr. Pulin Kumar, on full payment of Rs. 54,97,218/-. 3. That the Appellant received a demand letter dated 30.04.2016 regard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the O-I-O rejecting the Refund of Rs. 2,35,143/-. Being aggrieved the appellant is before this Tribunal. 7. It is submitted that the Appellant purchased constructed apartment by making outright full payment. Since the allotment and sale of apartment is by way of transfer of immovable property, amounts to sale, it cannot be a subject matter of service tax as per the definition of service as provided in Section 65B (44) of Chapter V of the Finance Act. 8. On the bare perusal of the definition, it is clear that to attract levy of Service Tax there must be a service and the following ingredients have to be satisfied: (i) There must be a taxable service as per Chapter V of the Finance Act, 1994; (ii) Service provider must be there for ren ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of a complex are treated as being carried by the builder on behalf of the buyer. However, indisputably the arrangement between the buyer and the builder is a composite one which involves not only the element of services but also goods in immovable property. Thus, while the legislative competence of the Parliament to tax the element of service involved cannot be disputed but the levy itself would fail, if it does not provide for a mechanism to ascertain the value of the services component which is the subject of the levy. Clearly service tax cannot be levied on the value of undivided share of land acquired by a buyer of a dwelling unit or on the value of goods which are incorporated in the project by a developer. 55. In view of the abov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... explanation to the extent that it seeks to include composite contracts for purchase of units in a complex within the scope of taxable service is set aside". 5. On perusal of the above judgment delivered by the Hon'ble Delhi High Court, it reveals that composite contract in relation to construction of complex, should not be subjected to levy of service tax on the service defined under Section 65 (105) (zzzh) of the Act. In other words, who so ever provides such service, which is composite in nature, shall not be liable to pay service tax. Claiming of the benefit of the judgment dated 03/06/2016 cannot be denied to the appellant as the same was rendered "in rem" and not "in personem". Therefore, I do not find any infirmity in the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X
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