TMI Blog2023 (10) TMI 993X X X X Extracts X X X X X X X X Extracts X X X X ..... of the facts, particularly the Appellant was registered with the Department, maintaining proper records and was filing returns as well as paying admitted tax. Further, Appellant, as early as on 07.10.2009, raised the issue of taxability with the Department for clarification and they have produced all their documents with respect to housing project promoted by them including development construction agreement. Thus, SCN dated 24.10.2011 is issued by way of change of opinion and there is no case made out of any concealment, suppression or fraud, etc., on the part of the Appellant and therefore on this account also, the entire demand has to fail. The impugned order set aside - appeal allowed. - HON'BLE MR. ANIL CHOUDHARY ( JUDICI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... truction of house outlining the payment terms etc. On completion of the construction of the house and on payment of the full amount, they transferred the property to the buyer and till then the property belonged to the appellants. 4. Initially, the appellants were under the impression that their work is liable to service tax and started discharging service tax on the amounts received by them. However, their external auditors have expressed doubts regarding liability to pay service tax on independent houses constructed by them for sale after considering various decisions of the Hon ble Tribunals and the circulars issued by the CBEC. The Appellants vide their letter dated 07.10.2009 have sought for clarification from the Jurisdictional Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.2009 submitted copies of the following documents to the JAC: i) Copies of development and construction agreement between developer and owner of the land; ii) Copy of sale deed and additional construction agreement; iii) Copy of proceedings issued by the Municipal Authorities of Visakhapatnam along with copy of approved plan layout. 5.2. As no clarification was forthcoming from the authorities, the appellants have filed refund application dated 10.01.2010 claiming refund of service tax paid during the period October 2008 to September 2009. The learned Commissioner vide his letter dated 15.02.2010 sought for following documents: i) Copies of agreements with the buyers; ii) Copies of sale/service invoices raise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -submission of invoice required to be raised under Rule 4A of Service Tax Rules, 1994. 6. Thereafter, the refund application was rejected vide Adjudication Order dated 14.02.2012, against which the Appellant had filed Appeal before the Commissioner (Appeals) and vide OIA No. 06/2013 (V-II) ST dated 26.02.2013, learned Commissioner (Appeals) was pleased to allow the Appeal ordering grant of refund subject to verification of unjust enrichment. Subsequently, refund was granted by Adjudicating Authority who was satisfied on the issue of unjust enrichment as informed by the learned Counsel for the Appellant. 7. Subsequently, the present SCN dated 24.10.2011 has been issued for the period 2006-07 to 2009-10 alleging that Appellant have wr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oned components like bore well, landscapes, park, etc. Admitted fact is that Appellant was registered with the Department, filing regular returns and was paying service tax under the head Construction of residential complex service . Subsequently, on being so advised that the service tax is not chargeable as the Appellant is constructing individual houses and more so, in view of the Hon ble Guwahati High Court in the case of Magus Constructions vs UOI (supra), wherein, it was held that when the developer constructs residential complex and enters into Agreement for sale of flats, it is treated to be a sale and not provision of service. The Appellant addressed query with the Revenue for the first time regarding taxability vide letter dated 0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idential colony promoted by them as the promoter under the development and construction agreement as aforementioned noticed. Thus, the classification is wrong. Further, all the agreements etc., were in the knowledge of the Revenue as it is a matter on record that these documents were produced before Revenue for clarification as aforementioned, as early as on 11.11.2009 as recorded in Para 5.1 of Order of the Commissioner dated 26.02.2013. Accordingly, learned Counsel prays for allowing the Appeal with consequential benefits. 10. Learned AR for Revenue relies on the Impugned Order. 11. In so far as leviability of service tax for period up to 01.07.2010 is concerned, the matter is no longer res integra and therefore, no service tax paym ..... X X X X Extracts X X X X X X X X Extracts X X X X
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