TaxTMI 
TaxTMI 
2019 (12) TMI 180
X X X X Extracts X X X X
X X X X Extracts X X X X
....rtments. They entered into a Development for Exchange agreement with Husam-Ud-Darein Trust, a wakf owned by Hazrat Zia Ali Ziaee for development of a residential complex named Nasr Apartments on the land owned by the said Trust. The appellant undertook construction on the land from December 2005 to March 2009. A General Power of Attorney (GPA) was also entered into between the land owner and the appellant for this purpose. According to this GPA, the land owner gave the entire land for development to the appellant and in return the appellant agreed to give 1/3rd of the total built-up area comprising of 28 flats to the land owner while the remaining 2/3rd of the built-up area comprising 56 flats will be with the appellant. After constructing ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....-II [2018 (11) TMI 164 - CESTAT Hyd] d. Mehta & Modi Homes vs CCCE & ST, Hyd-I [2019 (2) TMI 476] e. Grandeur Homes Pvt Ltd & Ors vs CCCE & ST, Hyd-II [2019 (2) TMI 772 - CESTAT Hyd] f. Vertex Nirman, Vertex Homes Pvt Ltd vs CCCE & ST, Hyd-IV & Ors [Final Order No. A/31615-31616/18] g. Krishna Homes vs CCE [2014 (34) STR 881 (Tri-Del)] h. Vijay Shanti Builders Ltd vs CST, Chennai [2018 (9) GSTL 257 (Tri- Chennai)] i. M/s Krishna Constructions vs CCE, Chennai-I [2018 (9) TMI 1066- CESTAT Chennai] j. Sreevatsa Real Estates (P) Ltd vs CCCE & ST, Coimbatore [2018 (9) TMI 1718-CESTAT Chennai] k. CCE & CST, Bangalore, ST-I vs Keerthi Estates Pvt Ltd [Final Order No. A/21594-2....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nvolving both supply of materials and rendition of service prior to 01.06.2007 and post this period they can be levied only under works contract service as has been held by the Hon'ble Supreme Court in the case of CCCE, Kerala vs Larsen & Toubro Ltd [2015 (39) STR 913 (SC)]. Fourthly, they would argue that the entire demand is on turnover received by developer from purchasers which should be treated as inclusive of value of service rendered to the land owner. In view of the above, he would urge that the entire demand needs to fail on merits as well as on limitation and the penalties are also liable to be set aside. 6. Learned departmental representative reiterates the findings of the lower authority and prays that the appeal may be rejec....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ntial complex was defined in Section 65(91a) of the Finance Act, 1994 as 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 park, lift, parking space, community hall, common water supply or effluent treatment system, located within a premises and the layout of such premises is approved by any authority under law for the time being in force, but does not include a complex which is constructed by a person directly engaging any other person for designing or planning of the layout, and the construction of such complex is intended for personal use as residence by such person". There is no dispute that the complex cons....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r and service recipient relationship, the question of providing taxable service to any person by any other person does not arise. W.e.f. 1-7-2010 an explanation was added to Section 65(105)(zzzh) which was as under :- "Explanation. - For the purposes of this sub-clause, the construction of a new building which is intended for sale, wholly or partly, by a builder or any person authorized by the builder before, during or after construction (except in cases for which no sum is received from or on behalf of the prospective buyer by the builder or the person authorized by the builder before grant of completion certificate by the authority competent to issue such certificate under any law for the time being in force) shall be deemed to b....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 service, if any, would be in the nature of a service rendered by the builder to himself; that the explanation expands the scope of the taxable service, provided by builders to buyers pursuant to an intended sale of immovable property before, during or after the construction and therefore the provision is expansive of the existing intent and not clari....