TaxTMI 
TaxTMI 
2022 (3) TMI 592
X X X X Extracts X X X X
X X X X Extracts X X X X
....per area of 167.82 square meters each. For the purpose the appellant entered into a home buyer's agreement with Emaar dated 27.09.2011 in case of Puneet Bansal and agreement dated 22.9.2011 in the case of Vanita Bansal. As per the agreement, the appellants were supposed to make the payment towards the receipt of Construction of Complex' service being provided by Emaar along with the element of service tax. The Emaar accordingly raised the demand upon completion of each milestones to recover the payments to purchase of flats, charging therewith service tax also. However pursuant to the decision of Hon'ble High Court of Delhi in W.P.(C) No. 2235/2011 and W.P.(C) 2971/2011 in the matter of Shri Suresh Kumar Bansal and Shri Anuj Goyal and others vs Union of India. The appellants filed refund claim of Rs. 5,14,952/- on 11.9.2020 in Appeal No. ST/50776/2021 and of Rs. 3,53,821/- on 8.5.2019 in Appeal No. ST/50787/2021. However, the deficiency memo was issued to both the appellants and their refund claim was rejected vide respective Order in Originals as mentioned in the order above. The appeals thereof have been rejected in both the case vide Order-in-Appeals as tabulated above. Still be....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... is therefore justified. Impressing upon no infirmity in the order under challenge, both the appeals are prayed to be dismissed. 5. After hearing the parties, the rival contentions and after perusing the record of the appeal as well as the decisions as relied upon while making respective submissions, my observations and findings are as follows: There is no denial to the fact that while purchasing the different floors of a immovable property the appellants have been paying the Service Tax along with the demands which were raised by the construction company at the completion of each milestone. There is also no denial to the fact that the Hon'ble High Court of Delhi in Suresh Kumar Bansal case (supra) case has held that Service Tax could not be levied on value of undivided share of land acquired by buyer of dwelling unit or value of goods which are incorporated in project by Developer. The refund in question has been filed based upon aforesaid decision with respect to such amount of Service Tax as was already paid by the appellants. The adjudicating authority have rejected the claim relying upon the retrospective amendment under Rule 2A of Service Tax Valuation Rules. The moo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....act shall determine the service tax payable in the following manner, namely :- (A) in case of works contracts entered into for execution of original works, service tax shall be payable on forty per cent. of the total amount charged for the works contract : Provided that where the gross amount charged includes the value of the land, in respect of the service provided by way of clause (8) of section 66E of the Act, service tax shall be payable on twenty five per cent. of the total amount including such gross amount; (B) in case of other works contracts including completion and finishing services such as glazing, plastering, floor and wall tiling, installation of electrical fittings not covered under sub-clause (A), service tax shall be payable on sixty per cent. of the total amount charged for the works contract; Explanation 1. - For the purposes of this rule, - (I) "original works" means - (i) all new constructions; (ii) all types of additions and alterations to abandoned or damaged structures on land that are required to make them workable; (II) "total amount" means the sum total of gross amount and the value o....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Section 65 of the Act would also take within their sweep indivisible composite works contracts. The Supreme Court further concluded that prior the enactment of the Finance Act, 2007 - by virtue of which Section 65(105)(zzzza) of the Act was introduced and Section 67 of the Act was amended - a composite contract was not taxable. This was so because in absence of Rule 2A of the Rules there was no machinery for excluding the non-service element from such composite works contracts involving an element of services and transfer of property in goods. Whilst the impugned explanation expands the scope of Section 65(105)(zzzh) of the Act, it does not provide any machinery for excluding the non-service components from the taxable services covered therein. The Rules also do not contain any provisions relating to determination of the value of services involved in the service covered under Section 65(105)(zzzh) of the Act. Thus the said clause cannot cover composite contracts such as the one entered into by the petitioners with the builder. 8. Hon'ble Delhi High Court in the case of Ruchi Goyal vs NBCC (India) Ltd. reported as [2019 (29) GSTL 392 (Del)] has given further clarity about the no....