TMI Blog2019 (10) TMI 1258X X X X Extracts X X X X X X X X Extracts X X X X ..... works contract, after 1 June, 2007 and held that in this case also the definition of a new residential complex given in section 65(91a) of the Act was required to be looked - The Commissioner has, however, without examining this aspect has made a general statement that it is a common knowledge that the Rajasthan Housing Board constructs large residential complexes comprising more than twelve residential units over a well delineated area having common facilities. The photographs enclosed with the Appeal clearly demonstrate that the houses that have been constructed by the Rajasthan Housing Board are either single storey or double stories with separate entry. The confirmation of demand for construction of ADR Centre, library building, canals for irrigation and wooden flooring at the stadium undertaken by the Awas Vikas Parsihad under works contract cannot also be sustained. Though the impugned order does not specify whether the activity would be covered by (b) or (c) or (d) since all that has been stated is that the works carried out by the Appellant would be covered under (b) to (d), but unless the Department is able to establish that the construction was for the purpose of com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that it was also not taxable since the Appellant had not constructed a new residential complex or a part thereof. The Appellant also contended that the extended period of limitation could not have been invoked. 5. The Commissioner, however, did not accept the contention of the Appellant that no taxable service had been provided and confirmed the demand of Service Tax. The observations of the Commissioner are as follows- From the statement of payment of the noticee it is observed that they have paid Sales Tax in respect of all the work order, which evidences that all the contracts were executed with material. These facts establish that there was transfer of property involved in the execution of said contract and Sales tax was paid on such property. Hence the conditions mentioned in clause (i) of the explanation to the work contract service were satisfied. The other condition is that the contract should be for the purpose of carrying out any activity defined under para (a) to (e) of subclause (ii) of said definition referred to above. In this regard, it is seen that the work carried out by the assessee were covered under para (b) to (d) of sub-clause (ii) of the definition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vied on the construction activity carried out by the Appellant for construction of the ADR Centre, library building, canals for the Irrigation Department and wooden flooring at the stadium. In support of his contention learned Counsel placed reliance upon the definition of Works Contract under section 65(105) (zzzza) of the Act as also the definition of residential complex contained in section 65 (91a) of the Act, and to certain decisions, to which reference shall be made at the appropriate stage. 9. Shri P. Juneja, learned Authorized Representative of the Department has, however, supported the impugned order and has contended that the demand of Service Tax is justified. In support of his contention learned Authorized Representative of the Department placed reliance upon the decision of the Principal Bench of the Tribunal at Delhi in Madhukar Mittal v/s Commissioner of Central Excise, Panchkula 2015(40) STR 969 (Tri.-Del). 10. The submissions advanced by the learned Counsel for the Appellant as also the learned Authorized Representative of the Department have been considered. 11. A perusal of the impugned order indicates that demand of Service Tax has been confirmed u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... signing or planning of the layout, and the construction of such complex is intended for personal use as residence by such person. Explanation: For the removal of doubts, it is hereby declared that for the purposes 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; 13. A perusal of the details of the turnover indicate that out of amount of ₹ 15.70 Crores received by the Appellant, an amount of ₹ 2.04 Crores was received by the Appellant for construction of the wooden flooring, ADR Centre, library building and canals for Irrigation Department, while the balance amount of ₹ 13.66 Crores was received by the Appellant towards the construction of the houses for the Rajasthan Housing Board. 14. It will, therefore, be appropriate to first examine whether the amount received by the Appellant for construction of the houses for the Rajasthan Housing Board would attract payment of Service Tax under category of Works Contract . For this purpose it would be releva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will not be covered by the definition of a residential complex and, therefore, would not be taxable under works contract as the contract executed with the Rajasthan Housing Board was not for construction of a new residential complex or the part thereof. 20. This submission, for the reasons stated above, deserves to be accepted. In this connection reliance can be placed on a Division Bench judgment of the Principal Bench of the Tribunal in Macro Marvel Projects Ltd. v/s Commissioner of Service Tax, Chennai 2008 (12) STR 603 (Tri.-Chennai) wherein the demand of Service Tax was for the period 16 June, 2005 to November, 2005 under construction of complex service under section 65(30a) of the Act. The Bench examined the scope of construction of complex where again it meant, amongst others, repair, alternative, renovation or restoration of a residential complex. The Bench examined the meaning of a residential complex under section 65(91a) of the Act and observed as follows:- It is abundantly clear from the above provisions that construction of residential complex having not more than 12 residential units is not sought to be taxed under the Finance Act, 1994. For the levy, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e than twelve residential units. 24. Thus, it is not possible to sustain the confirmation of demand in regard to the amount received by the Appellant under contracts for construction of houses for the Rajasthan Housing Board. 25. The confirmation of demand for construction of ADR Centre, library building, canals for irrigation and wooden flooring at the stadium undertaken by the Awas Vikas Parsihad under works contract cannot also be sustained. Though the impugned order does not specify whether the activity would be covered by (b) or (c) or (d) since all that has been stated is that the works carried out by the Appellant would be covered under (b) to (d), but unless the Department is able to establish that the construction was for the purpose of commerce and industry, Service Tax could not have been levied under works contract. The Department did not specify nor has any positive finding been recorded in the impugned order that the construction activity was for the purpose of commerce and industry. The confirmation of demand under this head for the aforesaid three construction activity cannot also be confirmed. 26. Thus, for all the reasons stated above, the impugned ord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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