TMI Blog2020 (7) TMI 701X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant did not provide residential complex service prior to 01.07.2012 and appellant was eligible for exemption under Notification No.25/2012-ST dated 20.06.2012 at Serial No.14 for activity of construction undertaken by him for the period subsequent to 01.07.2012. Further, appellant was not liable to pay Service Tax under Reverse Charge Mechanism. Appeal allowed - decided in favor of appellant. - Service Tax Appeal No.70514 of 2018-[DB] - Final Order No-70246/2020 - Dated:- 28-7-2020 - Smt. Archana Wadhwa, Member (Judicial) And Mr. Anil G. Shakkarwar, Member (Technical) For the Appellant : Shri Vineet Kumar Singh, Advocate For the Respondent : Shri Gyanendra Kumar Tripathi, Authorised Representative ORDER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants were sellingthe residential units only after its completion, they were under the bonafide belief that said activity did not fall under the category on which service tax was leviable. They further submitted that combined reading of various clauses of sale deed between the appellant and the purchasers of constructed property revealed that the transaction was purchase and sale of the premises and that the appellant was not caring out any constructional activity on behalf of the buyers and that the entire transaction was nothing but sale and purchase of immovable property. They further submitted that CBEC through its Circular No.332/35/2006-TRU dated 01.08.2006 and No.19/7/2007-ST dated 23.08.2007 had clarified that when the flats are sold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endered by developer in a complex, other than bundling the various input services, is the aggregation of residential owners on a common property, the perceptible legal distinction between the single unit and unit in a complex appears, from the above definitions, exemption and the tax objective, to be the transfer of share of land and constructed facilities in common as an undivided share to the buyer who has been making over consideration before issuance of certification of completion. From the facts documents on record, following points emerges for consideration of the adjudicating authority- (a) That the units Sold were completed in all respect. (b) That the units sold were out of Municipal Area of Mathura Municipal Corporation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clusive evidence that the transaction between the Party and buyers were related to Sale of units and not for service. Thus it is subject matter of State and by raising the demand on such transaction the department has transgress its authority. B. LIABILITY OF SERVICE TAX UNDER REVERSE CHARGE MECHANISM AFTER 01/07/2012- In the impugned SCN, the department had raised the liability of Service Tax on certain specified services under the mechanism of reverse charge in terms of Notification No.30/2012 dated 20.06.2012. In this regard Party submits that the provider of Security service was registered Private Limited Company and Private limited Company were out of ambit of RCM as per the aforesaid Notification. In this regard the Party submits t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no.22 as follows:- However, I would like to make it clear that this restriction of presence of minimum 12 residential units in a residential complex was applicable only upto 30.06.2012 and with effect from 01.07.2012 this quantitative restriction did not find place in the provisions. He, therefore, held that appellant was providing Construction of Residential Complex Service‟, and therefore he confirmed the demand to the tune of ₹ 6,27,126/- and imposed equal penalty and ordered the appellants to pay interest on the same. Aggrieved by the said order, appellant preferred appeal before Commissioner (Appeals) and raised the said grounds before the learned Commissioner (Appeals). Learned Commissioner (Appeals) through th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the completion of the construction and therefore, there was no service involved and it was a pure transaction of sale and purchase of immovable property. He has further submitted that the contentions of the appellant about non applicability of Service Tax under Reverse Charge Mechanism before Original Authority are sustainable in law. He has submitted that therefore the impugned order is not sustainable. 4. Head the learned Authorised Representative Shri Gyanendra Kumar Tripathi, who has supported the impugned order. 5. Having considered the submissions from both the sides and on perusal of record, we note that there is no evidence on record to establish that the appellant had constructed a residential complex before 30.06.2012 or t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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