TaxTMI 
TaxTMI 
TaxTMI 
2022 (9) TMI 217
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....work order given by the Rajasthan Housing Board [the Housing Board]. The appellant has stated that the Resident Engineer of the Housing Board has given a certificate that the houses constructed as per the work orders issued by the Housing Board are independent residential houses having independent approach and entry with separate electricity and water connections. According to the appellant, service tax was deposited by the appellant on such constructed houses by mistake and even the Housing Board deposited 50% of the service tax under reverse charge mechanism. The appellant claimed refund of the service tax deposited by the appellant as also the Housing Board since the Housing Board had awarded the contract in favour of the appellant for a gross amount, inclusive of all taxes and 50% of the service tax paid by the Housing Board was deducted from the amount payable to the appellant by the Housing Board. The appellant further claims that construction of the individual/independent residential houses was not subject to levy of service tax prior to July 01, 2012 and even after July 01, 2012 it was exempted under the Exemption Notification dated June 20, 2012. 4. The Commissioner (Appe....
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.... Commissioner (Appeals) has also rejected the refund claim on the ground of unjust enrichment. 6. Shri O.P. Agarwal, learned Chartered Accountant appearing for the appellant has submitted that the appellant is clearly entitled to exemption under the Exemption Notification dated June 20, 2012 since individual/independent houses were constructed by the appellant and levy of service tax is exempted under the Exemption Notification. In support of this contention, learned Chartered Accountant placed reliance upon the decision of the Division Bench of the Tribunal in Beriwal Constructions Co. vs Commissioner of Central Excise & Service Tax-II, Agra [2017 (5) GSTL 198 (Tri-All.)]. Learned Chartered Accountant also submitted that refund can be claimed by any person who has borne the incidence of tax and in support of this contention he has placed reliance upon the judgment of the Allahabad High Court in Commissioner of Customs, Central Excise & Service Tax vs Indian Farmers Fertilizers Coop. Ltd. [2014 (35) STR 492 (All.)] 7. Shri Ravi Kapoor, learned Authorized Representative appearing for the Department has, however, supported the impugned order and submitted that the appellant was not....
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....ent or without consideration; (b) "Residential unit" means a single house or a single apartment intended for use as a place of residence;" 13. It is seen that a 'residential complex' has been defined to mean any complex comprising of a building or buildings, having more than twelve residential units; and 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. 14. 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" 15. 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 f....
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....examined whether 'construction of a new residential complex or a part 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. 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. 18. This is what was also observed by a Division Bench of the Tribunal in M/s Lakhlan & Qureshi Construction Company vs Commissioner of Central Excise and Service Tax, Jaipur-I [Service Tax Appeal No. 55701/2014 decided on 14.10.2019]. 19. A Division Bench of the Tribunal in Beriwal Constructions Co. also examined the position both prior to July 01, 2012 and post July 01, 2012 and observed as follows : "6. Having considered the rival contentions and the admitted facts that the appellant have constructed individual units or row houses we find that it is evident from the aforementioned provisions both for the period prior to 1 July, 2012 and subsequent to that date, that construction of residential complex having not more than 12 residential units per....
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....Service tax. In the case of Macro Marvel Projects Ltd. (supra), this question has been considered by the Tribunal and the learned Tribunal very categorically stated that as per Clause (91a) of Section 65 of the Act, that construction of residential complex having not more than 12 residential units is not to be taxed under the Finance Act, 1994. For the levy, it should be a residential complex comprising more than 12 residential houses. Admittedly in the present case, the respondent constructed 15 independent HIG Houses, each being a residential unit. In view of the aforesaid, we are of the view that the learned Tribunal has not committed any legal error in allowing the appeal of the respondent. The decision of Macro Marvel Projects Ltd. (supra) has been affirmed by the Hon'ble Apex Court." (emphasis supplied) 21. It is true that w.e.f July 01, 2012 'construction of complex' is a declared service, but the Exemption Notification exempts services by way of construction, erection, commissioning or installation of original works pertaining to a single residential unit otherwise than as a part of a residential complex have been exempted. 22. In this view of the matter, the Com....