2013 (8) TMI 674

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....2. The appellant, M/s. Neel Sidhi Enterprises, Navi Mumbai constructed flats for sale during the period May, 2006 to December, 2006. During the period of construction, they entered into agreement of sale which on completion of the construction was sold to the prospective buyers. In the case of K Raheja Development Corporation vs. State of Karnataka the hon'ble apex Court clarified that the activities undertaken by the builders constructing flats/building for and on behalf of prospective buyers for consideration in cash or deferred payment is covered by the Works Contract and not under sale. Subsequent to this judgment, the Directorate General of Direct Tax ( sic ) issued a circular stating that service tax liability would arise under 'Works....

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.... sum that a sale deed is executed and only then the ownership of the property gets transferred to the ultimate owner. Therefore, any service provided by such seller in connection with the construction of residential complex till the execution of such sale deed would be in the nature of 'self-service' and consequently would not attract service tax. Further, if the ultimate owner enters into a contract for construction of a residential complex with a promoter / builder / developer, who himself provides service of design, planning and construction; and after such construction the ultimate owner receives such property for his personal use, then such activity would not be subjected to service tax, because this case would fall under the exclusion....

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....the facts of the case and he prays for grant of stay. 5. Learned Additional Commissioner (AR) appearing for the Revenue reiterates the findings given in the order of the lower adjudicating the appellate authorities. 6. As the issue is settled by the Circular dated 29/01/2009 issued by the Central Board of Excise and Customs, after dispensing with the requirement of pre-deposit of the dues adjudged, we take up the appeal for consideration and disposal. 7. We have carefully considered the rival submissions. Section 73A(2) reads as follows:    "(2) Where any person who has collected any amount, which is not required to be collected, from any other person, in any manner as representing service tax, such person shall forthw....