TaxTMI 
TaxTMI 
2019 (10) TMI 1258
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion of Alternative Dispute Resolution Centre at Churu, construction of a library building at Rajgarh, construction of canals for the Irrigation Department at Badra and construction of wooden flooring for the stadium at Churu. 3. A show cause notice dated 29/30 May, 2013 was issued by the Commissioner mentioning therein that the Appellant had received taxable services of Rs. 15,68,78,464/- during the period 2011-12 and 2012-13 (upto June, 2012) but had not paid any Service Tax. It was also stated that as the Appellant had suppressed the value of taxable service, the extended period of limitation provided for under the proviso to section 73(1) of the Act would be applicable. 4. The Appellant filed a reply dated 14 July, 2014 to the aforesaid show cause notice mentioning therein that no taxable service had been rendered by the Appellant. In respect of the construction of wooden flooring, ADR centre, library building and canal for irrigation it was stated that no commercial activity had been carried out and in respect of the houses constructed by the Appellant for Rajasthan Housing Board it was stated that it was also not taxable since the Appellant had not constructed a new resid....
X X X X Extracts X X X X
X X X X Extracts X X X X
....efore I hold that the assessee is liable to pay service tax under works contract service on full rate of service tax. In view of above, the total service tax not paid during the period 2011-12 & 2012-13 (upto June 2012) amounting to Rs. 1,68,83,724/- is recoverable from the assessee under proviso to section 73(1) of the Finance Act, 1994 as discussed above, along-with the interest under section 75 of Finance Act ibid. " 6. The Commissioner also did not accept the contention of the Appellant that the extended period of limitation could not have been invoked as the Appellant had not willfully suppressed any information with a view to evade payment of Service Tax. 7. This Appeal has, accordingly, been filed to assail the order passed by the Commissioner. 8. Shri Rupender Singh, learned Counsel appearing for the Appellant submitted that the Commissioner committed an error in confirming the demand of Service Tax in as much as neither Service Tax could be levied on the construction activity undertaken by the Appellant for construction of the houses for the Rajasthan Housing Board nor could Service Tax be levied on the construction activity carried out by the Appellant for construct....
X X X X Extracts X X X X
X X X X Extracts X X X X
....building or a civil structure or a part thereof, or of a pipeline or conduit, primarily for the purposes of commerce or industry; or (c) construction of a new residential complex or a part thereof; or (d) completion and finishing services, repair, alteration, renovation or restoration of, or similar services, in relation to (b) and (c); or (e) turnkey projects including engineering, procurement and construction or commissioning (EPC) projects;" 12. Residential Complex" has been defined under section 65(91a) of the Act as follows:- "(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 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 an authority under any 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... is intended for personal use as respondents by such person. 17. A residential unit" has also been defined in Explanation (b) to mean a single house or a single apartment intended for use as a place of residence. 18. The definition of a residential complex" leaves no manner of doubt that it would be a complex comprising of a building or buildings, having more than twelve residential units. In other words a complex may have a building having more than twelve residential units or a complex may have more than one building each having more than twelve residential units. Independent buildings having twelve or less than twelve residential units would not be covered by the definition of residential complex" 19. The contention of the Appellant is that independent residential houses were built, each having a separate entry with separate electricity and water connection and a single building did not have more than twelve residential units. It is for this reason that the Appellant contends that the houses constructed by it for the Rajasthan Housing Board will not be covered by the definition of a residential complex" and, therefore, would not be taxable under works contract" as the cont....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t thereof would be covered within the meaning of a works contract, after 1 June, 2007 and held that in this case also the definition of a new residential complex" given in section 65(91a) of the Act was required to be looked. 22. The Civil Appeal filed by the Department to assail the aforesaid order of the Tribunal was dismissed by the Supreme Court on 7 July, 2009. 23. The Commissioner has, however, without examining this aspect has made a general statement that it is a common knowledge that the Rajasthan Housing Board constructs large residential complexes comprising more than twelve residential units over a well delineated area having common facilities. The photographs enclosed with the Appeal clearly demonstrate that the houses that have been constructed by the Rajasthan Housing Board are either single storey or double stories with separate entry. The decision in Madhukar Mittal, relied upon by the learned Authorized Representative for the Department does not help the Department because a finding was recorded that a building had more than twelve residential units. 24. Thus, it is not possible to sustain the confirmation of demand in regard to the amount received by the Ap....