TMI Blog2020 (3) TMI 750X X X X Extracts X X X X X X X X Extracts X X X X ..... ion No.40117 of 2016 And Service Tax Appeal No.42466 of 2015 - FINAL ORDER NO.40276/2020 - Dated:- 10-2-2020 - HON BLE MS. SULEKHA BEEVI C.S., MEMBER (JUDICIAL) AND HON BLE MR. ANIL G. SHAKKARWAR, MEMBER(TECHNICAL) Ms. T. Usha Devi, DC (AR) For the Appellant Shri T.R. Ramesh, Advocate For the Respondent ORDER PER : SULEKHA BEEVI C.S Brief facts of the case are that the respondents are engaged in construction of residential complex service. During verification of records, it was noticed that they have not discharged service tax on certain residential projects. Show cause notice was issued proposing demand of service tax along with interest and for imposing penalty. After due process of law, the original authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ported the findings in the impugned order and also argued that Commissioner (Appeals) ought not to have set aside the penalty. 5. Heard both sides. The respondent has been issued with demand of service tax under construction of residential complex service . For better appreciation the definition is reproduced as under : construction of complex means - (a) construction of a new residential complex or a part thereof; or (b) completion and finishing services in relation to residential complex such as glazing, plastering, painting, floor and wall tiling, wall covering and wall papering, wood and metal joinery and carpentry, fencing and railing construction of swimming pools, acoustic applications or fittings and other simil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the ultimate owner is in the nature of agreement to sell . Such a case, as per the provisions of the Transfer of Property Act, does not by itself create any interest in or charge on such property. The property remains under the ownership of the seller (in the instant case, the promoters/builders/developers). It is only after the completion of the construction and full payment of the agreed sum that a sale deed is executed and only then the ownership of the property gets transferred to the ultimate owner. Therefore, any service provided by such seller in connection with the construction of residential complex till the execution of such sale deed would be in the nature of self-service and consequently would not attract service tax. Fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ior to completion of the flats from prospective buyers, these amounts do not attract service tax prior to 01.07.2010 for the reason that the explanation to Section 65(105)(zzzh) was added only on 01.07.2010. The land remained in the ownership of the appellants till completion of construction of flat. Thereafter, sale deed was executed to the buyer, whereby right/title/interest in undivided share of land as well as the flat is transferred to the buyer. The Tribunal had occasion to analyse a similar issue in the case of M/s. Creations vide Final Order No. 41649-41651/2018 (supra). So also in the case of Vijay Shanthi Builders Ltd. Vs. C.S.T. Chennai (supra), the said issue was considered and held that no service tax is payable when the develo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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