9911796707
TMI Blog2024 (7) TMI 552X X X X Extracts X X X X X X X X Extracts X X X X ..... 253/2010 dated 19.04.2010. 2. It was noted by the department that the appellant enters into agreement with flat buyers for sale of undivided share of land and another agreement is executed for carrying out construction activity. As the appellant was rendering construction services, show cause notice dated 19.04.2010 was issued for the period from 16.05.2005 to May 2009. The appellant then contented that their activity is covered by the Board's Circular No.108/02/2009 - ST dated 29.01.2009, and is not liable to pay service tax. 3. For the subsequent period, details were called for by the department. On perusal of documents it was noticed that the appellant had filed 'nil' returns for the period June 2009 to June 2010 and for the period fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es when the contracts are indivisible a composite nature. The decision of the Tribunal in the case of Real Value Promoters Pvt Limited vide Final Order 42436-42438/2018 dated 18.09.2018 was relied. The said decision was followed by the Tribunal in the case of Jain Housing and Construction Limited versus Commissioner of Service Tax vide Final Order No.40077-40079/2023. The demand of service tax was set aside by the Tribunal by following the decision in the case of Real Value Promoters (supra). Against the said order, the department filed appeal before the Hon'ble Apex Court. The department appeal was dismissed as reported in (2023) 10 CENTAX 171. It is prayed that the appeal may be allowed. 5. Ld. AR Shri. Harendra Singh Pal appeared and ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der No. 40599 / 2024 dtd 09.05.2024). reads as under:- 7. The issue is whether the demand of service tax raised against the appellant for the Construction of Residential Complex Services is sustainable for the period prior to 01.07.2010. The appellant being a Promoter/Developer/Builder of residential projects has entered into Joint Development agreement with land owners where the parties agree to jointly promote and develop a construction project. The relevant paras of the Show Cause Notice reads as under:- "8. Perusal of above agreement, clearly shows that the assesse are the builders of the residential apartments, based on a joint development agreement entered between Shri V.Ramaiah, the M.D of assesse company and M/s.City Lando ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to pay service tax for Construction of Residential Complex Services prior to 01.07.2010. The Tribunal in the case of M/s.Krishna Homes Vs. Commissioner of Central Excise 2014 (34) STR 881 held that the demand of service tax against a Promoter/Builder/Developer cannot sustain for the period prior to 01.07.2010. The relevant para of the decision of Tribunal reads as under:- "8. Coming first to the question as to whether the activity of M/s. Krishna Homes and M/s. Raj Homes was taxable during the period of dispute or not, by Finance Act, 2005, Clause (zzzh) was introduced into Section 65(105) of Finance Act, 1994, so as to bring within the purview of the term 'taxable service', a service provided or to be provided to any person by any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peals is covered by the definition of "residential complex" as given in Section 65(91a). There is also no dispute that both the assessees had engaged contractors for construction of the complexes. The dispute in these appeals is as to whether the assessees would be liable to pay Service Tax on the amounts charged by them from their customers with whom they had entered into agreements for construction of the residential units and whose possession was to be handed over on completion of the construction and full payment having been made by the customers. It is seen that on this point, the Tax Research Unit of the Central Board of Excise & Customs, which is a wing of the C.B.E. & C. dealing with legislation work, had vide Circular No. 332/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er." 9. Moreover, in the present case the contracts are composite in nature. The demand raised under Commercial or Industrial Construction or Construction of Residential Complex Services cannot sustain. The Tribunal in the case of Real Value Promoters Pvt Ltd (supra) had held that the demand of service tax for composite contracts can only be made under Works Contract Services. Therefore, the demand raised under the above categories of Services cannot sustain. 10. In the case of Jain Housing and Construction Ltd Vs. Commissioner of Service Tax vide Final Order Nos.4007740079/2023, the Tribunal followed the decision in the case of Real Value Promoters Pvt Ltd (supra) wherein it has held that in respect of any contract which is composite i ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
