TMI Blog2024 (3) TMI 184X X X X Extracts X X X X X X X X Extracts X X X X ..... bility. Order has taken into consideration declared service u/s 66E(b) of Finance Act 1994, which is for construction of a complex, building, civil structure or a part thereof, including a complex or building intended for sale to a buyer, wholly or partly, except where the entire consideration is received after issuance of completion-certificate by the competent authority. However, construction of complex intended for sale to a buyer is not correctly considered in these Orders. In the case of STATE OF WEST BENGAL ORS. VERSUS CALCUTTA CLUB LIMITED AND CHIEF COMMISSIONER OF CENTRAL EXCISE AND SERVICE ORS. VERSUS M/S. RANCHI CLUB LTD. [ 2019 (10) TMI 160 - SUPREME COURT] , it is seen that a club and its members are one and the same and the club is formed for the purpose for mutual benefit of its members. This principle equally applies in this case to the Radhe Villa Co-Operative Society, which has constructed residential units for its members only under development agreement with Appellant. Hence, no service tax is payable on Residential units created by Co-operative Society for its Members for personal use, as it is also in exclusion clause of section 65(91a) of the Finance Act 1994. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... residential units for individual known as Sharnam Villa and for 70 Residential units known as Radhe Villa Co-Operative housing society for its Members only. The Appellant has not sold any Residential units, hence, there is no Service tax liability on the Appellant under Construction of Residential Complex services, as confirmed by the impugned Orders. Service by Registered Co-Operative housing society to its Members is Service to self. Extended period for demands of Service Tax can not be invoked in this case. In absence of malafide intention to evade Service Tax, penalty can not be imposed. 4. Shri P. Ganeshan, Learned Superintendent (AR), appearing on behalf of Revenue reiterates the finding of impugned order and also submits to reject the Appeal. 5. We have carefully considered the submissions made by both sides and perused the relevant records. We find that in the present case, there is no dispute on the facts that SCN dated 25-03-2021 is issued solely on the basis of Income Tax data shared by the Income Tax authorities to the Central Excise authorities for F.Y. 2015-16 to 2017-18 [upto 30-06-2017], without causing any independent inquiry caused by Central Excise officers and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has actually not sold any residential flat to any other person, in the facts of this case. Provisions under Section 65(91a) of the Finance Act, 1994 contemplates construction of a new Residential Complex with a building or buildings having more than 12 residential units, which is reproduced for ready reference as under:- Section 65(91a) residential complex means any complex comprising of (i) a building or buildings, having more than twelve residential units; (ii) a common area; and (iii) any one or more of facilities or services such as park, lift, parking space, community hall, common water supply or effluent treatment system, located within a premises and the layout of such premises is approved by an authority under any law for the time being in force, but does not include a complex which is constructed by a person directly engaging any other person for designing or planning of the layout, and the construction of such complex is intended for personal use as residence by such person. Explanation. For the removal of doubts, it is hereby declared that for the purposes of this clause, (a) personal use includes permitting the complex for use as residence by another person on rent or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efined in Section 65B(44) under Finance Act 1994 shows that Service means any activity carried out by a person for another for consideration and the Explanation 3 to Section 65B(44), shows that an unincorporated association or a body of persons, as the case may be, and a member thereof shall be treated as distinct persons . We have seen from decision in case of State of WB v/s Calcutta Club Limited reported in 2019 (29) G.S.T.L. 545 (S.C.) that the Companies and Cooperative Societies which are registered under the respective Acts, can certainly be said to be constituted under those Acts and that Body of persons , therefore, would not, within these definitions, include a body constituted under any law for the time being in force. Therefore, in this case, Radhe Villa Co-Operative housing society, which is duly registered body of persons and hence the members thereof, can not be treated as distinct persons in terms of the Section 65B(44) under Finance Act 1994 for levy of Service Tax, if any. The Finance Act 1994 does not purport to levy Service Tax on members of incorporated Co-Operative Societies, when service is provided to its Members by the Society. In case State of West Bengal v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce Infrastructure Projects Pvt. Ltd-2022 (56) G.S.T.L. 3 (Kar.), the Hon ble Karnataka High Court has held as Under :- 9. We have considered the provision of Section 65(91a) of the Finance Act, 1994 which contemplates about a building or buildings having more than 12 residential units. In the present case, each building is not having more than 12 residential units. On the other hand, individual sanction plan has been given by the local authority. Each being the residential unit, the attention drawn to the explanation by the Learned Counsel for the revenue also would be of little assistance to the revenue, even if we consider the residential unit in the background of the building or buildings, the residential units constructed by the respondent/assessee would not certainly fall under Section 65(91a) of Finance Act, 1994. The above decision shows that Residential units are not liable to Service Tax, if, each such building or buildings is not having more than 12 Residential Units. The Hon ble Karnataka High Court answered substantial question of law in favour of Assessee and against Revenue, following approval of the Hon ble Apex Court for the Tribunal decision in Macro Marvel Project ..... X X X X Extracts X X X X X X X X Extracts X X X X
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