AI Drafter 
TaxTMI 
TaxTMI 
2022 (3) TMI 1259
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....s. 85,93,182/- for the period 1.04.2011 to 30.06.2012. Hence, this appeal. 2. Learned Counsel for the appellants submits that the activity of construction of residential quarters for the staff/employees for personal use of their client hence excluded the ambit of the taxable services "construction of complex", "commercial or industrial construction"; the learned Commissioner has accepted the position that the activity of construction of residential quarters, if meant for personal use by the business/commercial entities, is excluded from the purview of "works contract service"; the residential staff quarters constructed by the appellant in the present case are for personal use of the respective service recipient and not for the purpose commerce or industrial; no evidence has been adduced by the Department that may show use of constructed staff quarters for any commercial or industrial activity other than as residence for the staff/employees. Learned Counsel submits that in view of the definition of works contract service, the activity should be for the purpose of commerce or industry; the residential staff quarters are for the personal use by service recipients and not for the pu....
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....voked. The facts of the case of Jambeshwar Construction Co. and Pragati Edifice Pvt. Ltd. relied upon by the respondents are not applicable as the facts of the case are different. 6. Learned Authorised Representative appearing for the Department submits that as the classification of service has been done under "works contract service" even the construction of residential complex is covered under taxable service as per explanation 'c‟ of Section 65(105)(zzzza) of Finance Act, 1995, he relies upon the decision of the Tribunal in the case of Jambeshwar Construction Co. (MANU/CE/0477/2019) and Pragati Edifice Pvt. Ltd. (MANU/CH/0137/2019), wherein it was held that after 1.07.2010 service tax is chargeable under the head "construction of complex services" if it is service simplicitor and under "works contract service" if it is a composite works contract." 7. Heard both sides and perused the records of the case. 8. The brief issue that requires to be decided in this case is whether the service undertaken by the appellants falls under construction of complex services or works contract service. And as to whether the appellant is required to pay the applicable service tax on ....
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....esidential 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 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 singly apartment intended for use as a place of residence;‟ 11. Learned counsel for the appellants relies upon CBEC circular F No. 332/16/2010-TRU dated 24.05.2010. He further submits that settled position of law that the construction of residential quarters cannot be subjected to levy of service tax under any of....
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....ote that Departmental officers are bound by the Circular issued by Central Board of Excise and Customs. We note that C.B.E. & C. had issued Circular No. 80/10/2004-S.T., dated 17-9-2004 and in Para 13.2 clarified that the leviability of Service Tax was primarily dependent upon the use of the building or civil structure. Further, it clarified that it was to be ascertained where building or civil structure was used or to be used for commercial or industrial purpose and further required or gather the information as to whether the buildings or civil structures were being used or to be used for the purpose of making profit or not and clarified that if the building or civil structure was used or to be used not for the purposes of profit then the same are not taxable. 14. We find that Kolkata Bench of the Tribunal, vide final order no. 75657/2021 dated 12-10-2021, has gone in to identical issue in the case of Yogendra Rai. The Bench had difference of opinion between the Member (Judicial) and Member (Technical) and the issue was referred to the third member, who upheld the view taken by Member (Judicial). The Bench decided the issue in favour of the appellants. We find that Member (Judi....