TMI Blog2024 (3) TMI 349X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of sale entered into between the developer/builder and the prospective buyer, no right accrues to the buyer till the time sale deed for transfer of property is entered or executed - the construction of residential complex, under whichever head i.e., Construction of Complex or WCS is taxable only when pursuant to a contract, amount is received by the builder/developer from the intended buyer during construction stage, i.e., prior to grant of completion certificate by the competent authority. In other words, a sale, post construction (after grant of completion certificate) will not come within the scope of service tax. Accordingly, the demand of Rs.2,12,03,687/- is set aside. Works Contract service for the period 01.06.2007 to 31.03.2011 - HELD THAT:- No service tax is payable for the period up to 30.06.2010. So far the demand for the period 01.07.2010 to 31.03.2011 is concerned, the Appellant states that they dispute the reclassification of the same service under the head WCS. However, as per the Notification No. 29/2010 amending the earlier Notification No. 01/2006-ST, keeping in view the value of land also involved, which is being transferred, 75% abatement of the gross value ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remibursed by the supplier or reduced from the amount of the bill for purchase - Revenue has not disputed the factual aspect in this matter and accordingly, the ground taken is correct and thus, the demand of Rs.3,31,699/- set aside. Extended period of limitation - suppression of facts or not - HELD THAT:- The Appellant is registered with the Department and has maintained proper Books of Accounts, which is evident from the list of relied upon documents in the SCN. Further, there is no allegation of suppression, misdeclaration or other act for evading payment of service tax. Accordingly, extended period of limitation is also not available to the Revenue. Penalties - HELD RHAT:- The issue herein is wholly interpretational in nature and SCN has been issued by way of change of opinion, without finding the ST3 Returns filed to be wrong or erroneous. Accordingly, all penalties imposed are set aside. The impugned order set aside - appeal allowed. - MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) AND MR. A.K. JYOTISHI, MEMBER (TECHNICAL) Shri K. Chandra Sekhar, Advocate for the Appellant. Shri Chittaranjan Wagh Prakash, AR for the Respondent. ORDER The Appellant M/s Prajay Engineers Syndicate Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of Immovable Property service for the period 01.06.2007 to 31.03.2011 4,69,180 5. Proposed appropriation against (4) Above 3,21,680 6. Demand on Management, Maintenance or Repair service during the period 01.04.2006 to 31.03.2011 33,333 7. Demand on Transport of goods by Road service during the period 01.04.2006 to 31.03.2011 3,31,699 Total 10,36,77,018 2,52,91,879 4. Heard the parties and perused the records. 5. So far the first demand is concerned, we find that construction of complex service is not taxable for the period prior to 01.07.2010 as clarified vide Board Circulars read with amendment in the definition of construction of complex service Sec 65(105)(zzzh) read with Sec 65(91a) of the Finance Act, particularly, Circular No. 108/02/2009-ST dt.29.01.2009. In this Circular, it has been clarified that in spite of agreement of sale entered into between the developer/builder and the prospective buyer, no right accrues to the buyer till the time sale deed for transfer of property is entered or executed. With effect from 01.07.2010, explanation was added to Sec 65(105)(zzzh), which reads as follows: For the purpose of this sub-clause, construction of complex, which is intended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this ground and set aside the demand of Rs.8,16,39,119/-. We find that the payment of tax is also supported by the appropriation made from the deposits already made, in the Impugned Order. 10. Learned Counsel also points out that Revenue has erred in considering the gross amount of turnover towards Construction of Complex service at Rs.59,93,33,492/- for the period 01.07.2010 to 31.03.2011. The same is required to be recalculated, being erroneous. 11. The Revenue has included the amount collected in respect of 9 projects completed much before the subject date (01.07.2010), but some of the amounts are collected during this period (after 01.07.2010). These amounts are required to be deducted from the gross value for computation of the correct gross value. 12. In respect of the project Prajay Megapolis, it is submitted that the said project was done by a group company, viz., M/s Prajay Properties Pvt Ltd (PPPL) of the Appellant company. In the initial stage of the project some customers has issued cheques in favour of the Appellant totalling Rs.45,42,320/- which was transferred as such to M/s PPPL. Whereas, Revenue has erroneously considered the amount of Rs.23,27,53,000/- in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e amount already paid as tax, tallies. 15. Learned AR has not been able to dispute this contention. Accordingly, we allow this ground and set aside the demand in excess of Rs.3,21,680/-. 16. With reference to demand of Rs.3,31,699/- on Goods Transport Agency service, it has been urged that as per Rule 2(1)(d)(v) of the Service Tax Rules, the person liable to pay service tax in respect of the services notified under Sec 68(2) of the Finance Act, is the body corporate which pays or the person who is liable to pay freight either himself or through his agent for the transportation of goods by road in a goods carriage. The Appellant has demonstrated from sample purchase orders where it is clearly shown that price of the goods is inclusive of freight, taxes and goods to be delivered at the place of destination/ buyer s premises. Thus, as the Appellant has not paid the freight, they are not liable to pay any service tax on the same under Sec 68(2) of the Finance Act read with Rule 2(1)(d)(v) of Service Tax Rules. Some times, in case of business exigency, freight amount has been paid by the Appellant on behalf of the supplier initially, which has been remibursed by the supplier or reduced ..... X X X X Extracts X X X X X X X X Extracts X X X X
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