TaxTMI 
TaxTMI 
2019 (12) TMI 14
X X X X Extracts X X X X
X X X X Extracts X X X X
....mits that the issue is settled by this very bench for the period up to 01.07.2010 by Final Order No.20942-20943/ 2018 dated 04.07.2018/10.07.2018; the case is barred by limitation as extended period has been invoked in the subsequent show cause notice; construction of independent villas was never sought to be taxed; in respect of construction of Residential complexes under taken by them due allowance was not given for the value of the materials. He however, submits that they are not pressing on the levy of Service Tax demanded on 'Consulting Engineer Service' since they have paid duty before issue of Show Cause Notice. 3.1. Learned counsel submits that the Commissioner has confirmed the demand inter alia on the ground that the explanation inserted to Section 65(105) (zzzh) w.e.f. 01.07.2010 is clarificatory in nature and hence retrospective. Therefore, the Appellants were liable to pay service tax on the activity of sale of flats/villa from the period April 2007; in respect of demand for an earlier period, confirmed vide Order-in-Original Sl.No.3/2011 dated 31.01.2011, this bench, vide Final Order No.20942-20943/2018 dated 04.07.2018/10.07.2018, decided in favour of the Appellants....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mendment made to Rule 2A of the Service Tax (Determination of Value) Rules, 2006 is also not applicable to the present case, since Rule 2A is applicable only to "works contract service" and the present demand is under the taxable category of "construction of residential complex service". In terms of Article 265 of the Constitution of India, no tax should be levied or collected except by the authority of law. Therefore, the basic requirements under Article 265 are that (a) There must be a law (b) The law must authorize the tax and(c) The tax must be levied and collected according to the law. In the present case, the tax is not levied and collected in accordance with the law, as there is no statutory provision or a Rule determine the quantum of service portion in a composite transaction involving construction and sale of land. Therefore, any demand of service tax on a composite transaction involving construction and sale of land without a statutory machinery to determine the value of service, is in violation of Article 265 of the Constitution of India. He relies upon (a). Govind Saran Ganga Saran Vs CST1985 Supp SCC 205 (b). CCE & Cus. Kerala Vs Larsen & Toubro Ltd 2015 (39) ST....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ad-CESTAT) (e) Ashok Kumar Mittal Vs CCE & ST, Raipur 2019 (3) TMI 863-CESTAT NEW DELHI (f) Amit Kumar Jain Vs CCE & ST., Raipur 2018 (10) TMI 398-CESTAT New Delhi 3.4. Learned Counsel further submits that Commissioner in the impugned order has taken the cumulative figure declared in the balance sheet as the gross amount. The Appellants submit that on receiving the receipts from the prospective buyers of various projects, the same would be accumulated year on year under the head 'flat advances' (liability side of the balance sheet), till the sale entry is accounted in the books of accounts. The sale entry would be accounted only on handing over the possession of the apartment/villa. Therefore, unless sale entry is accounted in the books of accounts and the amounts received would be reflected in each year's balance sheet as 'flat advances'. The Appellants submit that the actual receipts pertaining to the financial year 2007-08 though it was offered to tax in the same financial year, was again adopted as the taxable value by Commissioner for the subsequent periods. The Commissioner in the impugned order has adopted the same calculation pattern for the subsequent financial years ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... demand under 'architect/consulting engineer service', the Appellants submit that they had paid the service tax along with interest much before the issuance of the show cause notice and in any case, the amount of service tax paid under reverse charge was available as Cenvat credit to the Appellants. The delay in payment under reverse charge was of the bona fide belief that no service tax was payable. Immediately on releasing that the same was payable, the Appellants remitted the service tax with interest. Penalties imposed are liable to set aside in terms of Section 80 as the Appellants had a reasonable cause for the non-payment of service tax. 4. Learned AR for the department reiterates the findings of the OIO. 5. Heard both sides and perused the records of the4 case. The brief issue involved in this case is to decide whether the appellants are liable to pay service tax on the 'constructions of complex services' and 'Consulting Engineer Service' for the period 01.04.2007 to 31.03.2012 and whether the SCN is time barred. We find that the present SCN is issued on 19.10.2012. We find that the explanation was added on 1-7-2010, the services rendered by the appellants before the issu....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of the layout, and the construction of such complex is intended for personal use as residence by such person. Explanation.-for the removal of doubts, it is hereby declared that for the purposes of this clause,- (a) "personal use" includes permitting the complex for use as residence by another person on rent or without consideration; (b) "residential unit" means a single house or a single apartment intended for use as a place of residence;" As per the above, residential complex should have more than twelve residential units in it. This is the first and foremost condition under the definition. The other conditions liked parking facility, common areas, common facilities, common layout etc., are only supplementary to the main condition that complex should have a building having more than twelve residential units or the buildings in the complex should have more than twelve residential units in it. Villa is a single residential unit and the entire project would not have a building with more than twelve residential units to fall within the ambit of definition of 'residential complex' under Section 65 (91a). We find that the case of the appellants is covered by the case law cit....