TMI Blog2024 (4) TMI 393X X X X Extracts X X X X X X X X Extracts X X X X ..... residential nature prior to 01.07.2010. Even otherwise, it is found that the land owner and the appellant, as developer, have worked on principal to principal basis and there is no relation of service provider and service recipient between them. The impugned order is set aside - appeal allowed. - HON'BLE MR. ANIL CHOUDHARY , MEMBER ( JUDICIAL ) And HON BLE MR. A. K. JYOTISHI , MEMBER ( TECHNICAL ) Shri B. Venugopal , Advocate for the Appellant Shri B. Sangameshwar Rao , Authorized Representative for the Respondent ORDER [ Order per : ANIL CHOUDHARY ] The Appellant M/s Aparna Constructions Estates Pvt Ltd is engaged, amongst others, in the activity of development and construction of flats and villas and are registered with the Service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctive taxable service prior to 01.06.2007, no portion of that contract would be eligible for Composition Scheme under WCS. (v) As the appellant has paid service tax on their share of flats under Construction of Complex service prior to 01.06.2007, thus, they are not entitled to benefit of Composition Scheme for payment of service tax on the land owner s share, which post 01.06.2007 is liable to be classified under WCS. (vi) As per the Development Agreement cum General Power of Attorney, being document dt.25.11.2004, read with Supplementary Agreement dt.10.08.2005, land owner and the developer s share of the constructed area is in the ratio of 32.5% and 67.5% respectively. 3. It was further urged in the SCN that as per the agreement, it is c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted fact is that the constructed area towards land owner s share was handed over in the month of June, 2009. Accordingly, service tax was demanded of Rs.3,18,64,753/- under the head WCS with proposal to impose penalty under section 78 of the Act. 4. The SCN was adjudicated on contest and the proposed demand was confirmed with interest and further equal amount of penalty was imposed under section 78 of the Act by the Commissioner. Being aggrieved, the appellant is in appeal before this Tribunal. 5. Learned Counsel for the appellant Mr. B. Venugopal inter alia urges that under the admitted facts that the construction was completed prior to 01.07.2010 and the land owner s share was handed over in the month of June 2009, the demand in the inst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifice Pvt Ltd [2019 (31) GSTL 241]. This Tribunal summing up its findings has held as follows: (n) To sum up, as far as construction of residential complexes by the builders are concerned: (i) Prior to 1-6-2007, if it is a composite works contract, no Service Tax is leviable in view of the judgment of the Hon ble Apex Court in the case of Larsen Toubro (supra). (ii) After 1-6-2007, it is chargeable as works contract only if it is a composite contract and under construction of complex services if it is a service simpliciter. (iii) However, after 1-6-2007 but prior to 1-7-2010, whether it is a service simpliciter or a works contract, if the service is rendered prior to issue of completion certificate and transfer to the customer, it is not ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de payment of service tax. It has been held in several judicial precedents that for change of opinion, extended period is not invokable. 8. Accordingly, learned Counsel prays for allowing the appeal with consequential benefits. 9. Learned AR for Revenue relies on the findings in the impugned order. 10. Having considered the rival contentions, we are satisfied in view of the explanation introduced in section 65(105)(zzzh) w.e.f. 01.07.2010 and clarification issued by the Board vide Circular No. 151/2/2012-ST dt.10.02.2012 that there is no tax liability to service tax for the construction activity of residential nature prior to 01.07.2010. Even otherwise, we find that the land owner and the appellant, as developer, have worked on principal to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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