2019 (10) TMI 1151 - AT - Service Tax

Tribunal Rules in Favor of Builder - Construction Activities Not Taxable

The Tribunal allowed the appeal against the demand for service tax on the construction of a residential complex. It was determined that the construction ... Construction of complex service - demand of service tax on residential complex constructed - HELD THAT:- The definition of the service liable to tax under the head of construction of complex service was amended by introduction of explanation to the clause (zzzh) of sub section (105) of Section 65 of the Finance Act - the cases where any amount is received by the builder from the prospective buyer of flats in installments in an agreement of sale became liable to tax only from the introduction of the above explanation w.e.f. 01.07.2010. The issue decided in the case of COMMR. OF C. EX., CHANDIGARH VERSUS GREEN VIEW LAND & BUILDCON LTD. [2013 (6) TMI 315 - CESTAT NEW DELHI] where it was held that the explanation cannot be have retrospective effect and that in view of the various clarifications issued by C.B.E. & C. during the relevant time no Service Tax liability can be imposed on the respondent for this type of activity. Demand do not sustain - appeal allowed - decided in favor of appellant. Issues:Service tax on residential complex construction.Analysis:The appeal was filed against the order confirming the demand of service tax on the construction of a residential complex. The appellant argued that the construction activities were not covered by the definition of 'Construction of Complex Service' at the material time and became taxable only after the introduction of an explanation to the relevant section of the Finance Act in 2010. The appellant cited several case laws supporting their position. The respondent did not provide any distinguishing law or fact from the appellant's cited cases.The Tribunal considered the amendment to the definition of the service liable to tax under the head of construction of complex service. It was noted that cases where amounts were received from prospective buyers in installments became taxable only after the introduction of the explanation in 2010. The Tribunal referred to a previous decision in the case of Green View Land & Buildcon Ltd, where a similar issue was decided in favor of the appellant based on the non-retrospective effect of the explanation.Additionally, the Tribunal referenced the case of Bee Gee Construction Co., where the High Court's judgment emphasized that when a builder undertakes construction activity for its own self, without a relationship of service provider and recipient, no taxable service is provided. This ruling was deemed applicable to the present case, where the construction activities were undertaken on the appellant's land for residential complexes sold to prospective buyers.Based on the precedents and legal interpretations discussed, the Tribunal allowed the appeal, highlighting the applicability of the decisions to the facts of the case. The appeal was allowed based on the consistent legal principles established in the cited cases and the non-retrospective effect of the relevant explanation introduced in the Finance Act.