TMI Blog2023 (4) TMI 346X X X X Extracts X X X X X X X X Extracts X X X X ..... hired by Society and nature of the transaction between the parties and in the light of definition of service and its liability for service tax, the transaction in this case cannot be considered taxable. With the above order of the Tribunal which was upheld by the Hon ble High Court in [[ 2011 (6) TMI 289 - GUJARAT HIGH COURT] ], the issue on merit that whether the service of construction of complex provided by the appellant s Cooperative Housing Society to its members is liable to service tax or otherwise has been settled in favour of the appellant. Appeal allowed. - SERVICE TAX Appeal No. 248 of 2012-DB - FINAL ORDER NO. A/10780/2023 - Dated:- 3-4-2023 - MR. RAMESH NAIR, MEMBER (JUDICIAL) AND MR. C.L. MAHAR, MEMBER (TECHNICAL) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsidering the merits in detail. Against the said Tribunal s order, Revenue had filed Tax Appeal No. 382 of 2010 before the Hon ble High Court of Gujarat which was dismissed vide order dated 30.06.2011 on merit. Accordingly, the issue stand settled that the service between present Co-operative Housing Society to its members is not liable for service tax. With this legal position, the demand in the present case does not survive hence, the appeal be allowed. 3. Shri Kalpesh P Shah, Superintendent (AR), appearing on behalf of the revenue reiterates the finding of the impugned order. 4. We have carefully considered the submissions made by both the sides and perused the record. We find that in the present case, the issue to be decided by u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of complex' service falling under Section 65(105) (zzzh) of the Finance Act, 1994. If no other person is engaged for construction work builder/promoter/developer and the undertakes construction work on his own without engaging the services of any other person, then in such cases in the absence of service provider and service recipient relationship, the question of providing taxable service to any person by other person does not arise. 6. Further, Board had issued clarification on 29.01.01 which is relevant and is reproduced below: 3. The matter has been examined by the Board, Generally, the initial agreement between the promoters/builders/developers and the ultimate owner is in the nature of 'agreement to sell'. Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liability for service tax, the transaction in this case cannot be considered taxable. Therefore, all the appeals are allowed. However, the matter is remanded back to the original adjudicating authority in view of the fact that unjust enrichment aspect will have to be examined before granting refund and also for verification of the correctness of the claim. Against the above Tribunal order, the revenue had filed Tax appeal No. 382 of 2010 wherein, the Hon ble High Court of Gujarat vide order dated 30.06.2011 has passed the following order:- 7 . From the record, we find that the impugned judgment of the Tribunal came to be upheld by the Division Bench in case of M/s. Sujal Developers (supra), relevant portion of which, we have alread ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anation legal situation in factual background arising in present appeal, would or would not be any different. Suffice it to note that the explanation was brought in the statute book long after the taxing event in the present case had arisen. 9 . In absence of any indication in the amendment to make it either retrospective or explanation being merely declaratory or clarifiacatory in nature, such statutory change cannot be made applicable to the long past events. 10 . In the result, we do not find that any question of law arises. Tax Appeal, is therefore, dismissed. Order in Civil Application In view of order passed in main matter, Civil Application for stay does not survive and is disposed of accordingly. Order in Civil Applica ..... X X X X Extracts X X X X X X X X Extracts X X X X
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