TMI Blog2023 (10) TMI 228X X X X Extracts X X X X X X X X Extracts X X X X ..... nsertion of Explanation under Section 65(105) (zzzh) to the Finance Act, 2010. It is pertinent to refer the decision of the Tribunal in the case of C.C.E C.S.T. -BANGALORE SERVICE TAX- I VERSUS KEERTHI ESTATES PVT. LTD. [ 2018 (10) TMI 840 - CESTAT BANGALORE] wherein the Tribunal has considered the identical issue as involved in the present case and has held we are of the considered view that prior to 1-7-2010 builders/developers are not liable to pay service tax for the Construction of Residential Complex Service and in the present case, the period involved is from 16-6-2005 to 31-1-2007. The Master Circular No. 96/7/2007-ST dated 23-08-2007 issued by CBEC also clarified this issue regarding the leviability of service tax on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow cause notice dated 22.09.2008 was issued to the appellant for recovery of Service Tax of Rs. 18,19,099/- along with interest and proposing penal provisions in terms of Section 76, 77 and 78 of the Act. 2.1 After following due process, the original authority confirmed the demand of Rs. 18,19,099/-along with interest but did not impose any penalty. 2.2 Aggrieved by the said order, the appellant filed appeal before the Ld. Commissioner (Appeals) who rejected the said appeal. 2.3 Hence, the preset appeal. 3. Heard both the parties and perused the records. 4. Ld. Counsel appearing for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without considering the facts and the law a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant itself for the subsequent period i.e October 2007 to July 2008 have also been vacated by the jurisdictional Deputy Commissioner, Central Excise Division, Dera Bassi, vide OIO No. 27/DC/ DB/STC/ 09 dt. 14-07-2009. 5. On the other hand, the Ld. DR reiterated the findings in the impugned order. 6. After considering the submissions of both the parties and perusal of material on record, we find that this issue is no more res-integra and has been considered by various benches of the Tribunal and the Tribunal has consistently held that an activity undertaken by a Real estate builder/developer is liable to tax w.e.f 01-07-2010 only with the insertion of Explanation under Section 65(105) (zzzh) to the Finance Act, 2010. In this regard, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the explanation inserted by the Finance Act, 2010 brings within the fold of taxable service a construction service provided by the builder to a buyer where there is an intended sale between the parties whether before, during or after construction; that the Explanation was specifically legislated upon to expand the concept of taxable service; that prior to the explanation, the view taken was that since a mere agreement to sell does not create any interest in the property and the title to the property continues to remain with the builder, no service was provided to the buyer; that the service, if any, would be in the nature of a service rendered by the builder to himself; that the explanation expands the scope of the taxable service, prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 65(105)(zzzh) during the period prior to 1-7-2010. 6 . Similarly the Chennai Bench of the Tribunal in the case of Vijay Shanthi Builders Ltd. has followed the decision of Krishna Homes and has held that the service tax is not chargeable on construction of residential complex during the period prior to 1-7-2010. In view of the various decisions cited supra, we are of the considered view that prior to 1-7-2010 builders/developers are not liable to pay service tax for the Construction of Residential Complex Service and in the present case, the period involved is from 16-6-2005 to 31-1-2007. Consequently, we hold that the impugned order is not sustainable in law and we set aside the same by allowing the appeal of the appellant wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty under Sec. 77 78 of the Finance Act, 1994. Accordingly, in exercise of the powers conferred under Sec. 80, we set aside the penalties imposed upon the appellant. 6.2 Further, the Master Circular No. 96/7/2007-ST dated 23-08-2007 issued by CBEC also clarified this issue regarding the leviability of service tax on the Builders/Developers. 6.3 In view of the fact that the issue settled in the decisions cited (supra) and by following the ratio of the above said decisions, we hold that the impugned order is not sustainable in law and therefore, the same is set-aside by allowing the appeal of the appellant with consequential relief, if any, as per law. (Operative part of the order pronounced in the open Court) - - TaxTMI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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