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TMI Blog2024 (5) TMI 1448X X X X Extracts X X X X X X X X Extracts X X X X ..... harged service tax on the amounts received towards the ensuing projects, the officers of the department visited the office premises of the appellant and verified documents. It was noted that appellant has not discharged appropriate service tax. 2. Show Cause Notice dated 19.04.2010 was issued to the appellant proposing to demand service tax under the category of 'Construction of Residential Complex Services', for the period from 16.06.2005 to May 2009, along with interest and for imposing penalty. After due process of law, the Original Authority confirmed the demand, interest and imposed penalty. On appeal, the Commissioner (Appeals) upheld the same. Aggrieved by such order, the appellant is before the Tribunal. 3. Ld. Counsel, Ms. Radhik ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x 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 assessee are the builders of the residential apartments, based on a joint development agreement entered between Shri V. Ramaiah, the M.D of assessee company and M/s. City Lando Corpn and 7 others for building 120 flats with certain common amenities like lift, club house, gymnasium, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 other person "in relation to construction of complex". The expression "construction o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a). 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. 332/35/2006-TRU, dated 1-8-2006 clarified that in case where a builder, promoter, develop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 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. 40077- 40079/2023, 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 in nature the demand of service tax cannot be under CICS/CCS for the period prio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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