TaxTMI 
TaxTMI 
2013 (8) TMI 339
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....time the adjudication order was received and hence there was some delay in processing of the papers for filing of appeal. The applicant requests that the delay in filing the appeal may be condoned. After hearing both sides we consider it proper to condone the delay and it is ordered accordingly. 2. There is a Miscellaneous application filed by Revenue to change the name of Respondent as Commissioner of Service Tax Chennai instead of Commissioner of Central Excise, Chennai-I because presently the applicant-appellant is registered with Commissioner of Service Tax Chennai. After hearing both sides this petition is also allowed. 3. Now the stay petition was taken up for hearing. The applicant is engaged in promotion and construction of re....
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....st and penalties. Aggrieved by the order, the applicant has filed an appeal before this Tribunal along with stay application for waiver of pre-deposit of dues arising from the impugned order. Such petition is being considered in this proceeding. 5. The main argument of the Ld. Counsel for the applicant is that when the construction activity was done the land was still in the name of the applicant and therefore at that stage there was no relationship of service provider and service recipient between the applicant and the prospective buyers and the construction activity was done for the benefit of applicant itself and hence the demand for service tax is not maintainable. The Counsel for the applicant relies on the following circulars issue....
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....ed only on 28-03-2010 demonstrating that the department itself was not sure of the legal position and in such a situation invoking extended period for making the demand is not sustainable. He submits that the entire demand is beyond the normal period of limitation of one year. 10. The Ld. Counsel also pleads that there was no suppression of facts on the part of the applicant and hence the demand confirmed invoking extended period is not maintainable. He further submits that the applicant is facing financial difficulties for making pre-deposit on account of the general slump in the construction industry. 11. The prayer of the Counsel for the applicant is that the appeal maybe taken up for hearing without any pre-deposit for the reasons....
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....e Ld. AR submits that the definition under Section 65 (91a) excludes only those cases where the entire residential complex is for the personal use of the person getting the building constructed for his own residence or for renting it out. He submits that the exclusion clause will not apply to cases where the individual residential units are for sale to others. The exclusion cannot be interpreted to mean that if each residential unit is meant for stay of the prospective buyers or for rending it out, buildings comprising of such flats will not be covered by the definition. If such interpretation is given to the definition under Section 65 (91a) no building will come under the tax net at all. He argues that any definition which makes an entry ....
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....time department will not be able to recover any dues. 17. We have considered the arguments by both sides. We are of the view that there is a relationship of service provider and service recipient between the applicant and the prospective buyers of the individual residential units as it is evidenced by the contract between the two parties. The contract is not for sale of flats but for providing construction service. 18. We have also examined the exclusion clause in section 65(91a) which reads as under: (91a) residential complex means any complex comprising of- (i) a building or buildings, having more than twelve residential units; (ii) a common area; and (iii) any one or more of facilities or services such as p....