2018 (10) TMI 840

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....ainst the impugned order challenging the non-imposition of penalty under Section 78 of the Act. All the three appeals are being disposed of by this common order. The facts of the case in the assessee's appeal is that the appellant-assessee is engaged in the business of developing residential complex and are registered under service tax w.e.f. 06.07.2005 as per Section 69 of the Act for said Construction of Residential Complex Service. On the basis of intelligence gathered, the officers of DGCEI, Bangalore conducted the investigation and recorded the statement of authorized signatory of the appellant. The appellants were proceeded alleging non-payment of service tax under the category of 'Construction of Residential Complex Service' for the ....

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....at the impugned order is not sustainable in law as the same has been passed without properly appreciating the facts and the law on the point. He further submitted that this issue has been settled in favour of the assessee by various decision of the Tribunal. He further submitted that it is on record that the appellants had entered into Development Agreements with landowners in terms of which the appellants were conferred the rights to develop the property at their own cost and deliver certain portion of the constructed complex along with common areas, amenities and car parking areas. He further submitted that till the construction of residential complex was completed, the property belonging to the appellant as a Power of Attorney Holder and....

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....ions in the case of CCE, Chandigarh Vs. U.B. Construction (P) Ltd. - 2013 (32) S.T.R. 738 (Tri.-Del.) wherein it is held that levy of service tax on the services rendered by a builder is prospective from 01.07.2010 by virtue of explanation added to Section 65(105)(zzzh) of the Finance Act, 2010. He further relied upon the decision of Krishna Homes Vs. CCE, Bhopal reported in 2014 (34) S.T.R. 881 (Tri.-Del.) wherein the Tribunal relying upon the decision of the Hon'ble Supreme Court in the case of Larsen & Tourbo Ltd. as reported in 2014 (34) S.T.R. 481 has held that works contract involving transfer of immovable property is taxable only from 01.07.2010. The decision of the Krishna Homes has been followed by CESTAT, Chennai in the case of Vi....

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....grounds. The Bombay High Court, also considered the issue whether the explanation was prospective or retrospective in operation and ruled that the explanation inserted by the Finance Act, 2010 brings within the fold of taxable service a construction service provided by the builder to a buyer where there is an intended sale between the parties whether before, during or after construction; that the „Explanation‟ was specifically legislated upon to expand the concept of taxable service; that prior to the explanation, the view taken was that since a mere agreement to sell does not create any interest in the property and the title to the property continues to remain with the builder, no service was provided to the buyer; that the ser....