2023 (2) TMI 1216 - AT - Service Tax

Government housing corporation building police residences not liable for service tax under residential complex service definition

Navtan Builders Versus C.C.E. & S.T. -Daman

CESTAT Ahmedabad held that construction of residences for police personnel by a government housing corporation was not liable to service tax under the ... Levy of service tax - Construction of Complex Service or not - construction of residences for police personal - HELD THAT:- The definition of residential complex excludes from the levy of Service Tax “complex which is constructed by a person directly engaging any other person for designing or planning of the lay out and the construction of such complex is intended for personal use as residence by such persons.” This expression has been interpreted by Tribunal in the case of M/S. SIMA ENGINEERING CONSTRUCTIONS, S. RAJANGAM, T.M. SARAVANAN, M/S. MARIMUTHU GOUNDER & SONS VERSUS CCE, TRICHY [2018 (5) TMI 405 - CESTAT CHENNAI] where it was held that similar issue decided in the case of NITHESH ESTATES LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, SERVICE TAX AND CUSTOMS BANGALORE-II [2015 (11) TMI 219 - CESTAT BANGALORE], where it was held that If the land owner enters into a contract with a promoter/builder/developer who himself provided service of design, planning and construction and if the property is used for personal use then such activity would not be subject to service tax. Thus, the use of the residential complex by (GSPHCL) is excluded from the definition of residential Complex as “intended for personal use as residence by such persons” - there are no merit in the order, the order is set aside - appeal allowed. Issues Involved:1. Whether the service provided by the appellant falls under the definition of 'Construction of Complex Service'.2. Whether the service provided to Gujarat State Police Housing Corporation Ltd. (GSPHCL) is excluded from the levy of Service Tax under the definition of 'Construction of Complex Service'.Comprehensive, Issue-Wise Detailed Analysis:1. Definition of 'Construction of Complex Service':The appellant, M/s. Navtan Builders, contested the demand for service tax under the category of 'Construction of Complex Service.' The definition as per Section 65 of the Finance Act, 1994 includes:- Construction of a new residential complex.- Completion and finishing services related to residential complexes.- Repair, alteration, renovation, or restoration of residential complexes.The appellant argued that their services, provided to GSPHCL for constructing residences for police personnel, fall within this definition. However, they contended that these services should be excluded from service tax as they are intended for personal use by the police personnel, citing precedents from Tribunal decisions in the cases of Lanco Tanjore Power Co. Ltd. and Sima Engineering.2. Exclusion from Service Tax for Personal Use:The Tribunal examined whether the residential complex constructed by the appellant for GSPHCL qualifies for exclusion from service tax. The definition of 'residential complex' excludes complexes constructed for personal use, which includes permitting the complex for use as a residence by another person on rent or without consideration. This interpretation was supported by the Tribunal's decisions in similar cases.Case References and Precedents:- Sima Engineering (2018): The Tribunal held that residential complexes built for police personnel by TNPHCL were for personal use, thus excluded from service tax.- Nithesh Estates: The Tribunal observed that if a complex is constructed for personal use by engaging another person for design or planning, it is not subject to service tax. This was applicable to ITC Ltd., where the constructed complex was intended for use by their employees.- Lanco Tanjore Power Co. Ltd.: The Tribunal reiterated that residential units constructed for the personal use of employees are exempt from service tax.- Khurana Engineering (2010): The Tribunal concluded that services provided to the Government of India for residential complexes intended for personal use by employees are excluded from service tax. The Tribunal also discussed the role of CPWD and the contractual obligations, affirming that services provided directly to the government are exempt.Judgment:The Tribunal relied on these precedents to conclude that the residential complex constructed by the appellant for GSPHCL is intended for personal use as residences for police personnel. Therefore, it falls within the exclusion clause of the definition of 'Construction of Complex Service.' Consequently, the demand for service tax was set aside, and the appeal was allowed.Conclusion:The Tribunal's decision established that services provided for constructing residential complexes intended for personal use by employees or personnel are excluded from the levy of service tax. This judgment aligns with previous rulings, reinforcing the interpretation of personal use within the context of service tax exemptions. The order was pronounced in the open court, setting aside the impugned order and allowing the appeal.