TaxTMI 
TaxTMI 
TaxTMI 
2022 (10) TMI 427
X X X X Extracts X X X X
X X X X Extracts X X X X
.... is whether the appellant would be entitled to refund of service tax said to have been deposited by mistake on construction of individual/independent residential houses during the aforesaid period from 01.04.2013 to 31.03.2014. The Commissioner (Appeals) rejected the refund claims of the appellant both on merits as also on unjust enrichment. 4. The appellant constructed individual/independent residential houses as per the 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, inclusiv....
X X X X Extracts X X X X
X X X X Extracts X X X X
....her I find that vide work order No. RE/2011-12/1008 dated 25.10.2011, the appellant has been awarded work for construction of 26 Nos. Complete Houses at Akara Bhatta, Abu Road. Thus I find that in the same premises of Manpuar and Akara Bhatta of Abu Road more than one house has been constructed and thus I find from these work orders that more than one residential houses have been constructed in the same area and premises and the houses are part of residential complex and therefore are liable to service tax. It is therefore, Rajasthan Housing Board has clearly mentioned in the Work Order (dtd. 23.09.13) that "This work order shall be subject to Service tax as per service tax law since the work order is inclusive of service tax, RHB shall deduct its share of service tax liability from the contractor bill and contractor will pay its own liability to the excise department". In case the work orders were only for construction of a single residential unit otherwise than as a part of a residential complex then no such clause would have been mentioned in the work order by Rajasthan Housing Board. Furthermore, the appellant has not submitted crucial documents like photographs and drawing and....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., 1994 [the Finance Act] provides that 'taxable service‟ means "any services provided or to be provided to any person, by any other person in relation to construction of complex". 12. 'Construction of complex‟ has been defined in section 65(30a) of the Finance Act as follows : "Section 65(30a) - "Construction of Complex" "Construction of Complex" means (a) Construction of a new residential complex or a part thereof; or (b) Completion and finishing services in relation to residential complex such as glazing, plastering, painting, floor and wall tiling, wall covering and wall papering, wood and metal joinery and carpentry, fencing and railing, construction of swimming pools, acoustic application or fittings and other similar services; or (c) Repair, alteration, renovation or restoration of, or similar services in relation to, residential complex;" 13. A 'residential complex‟ has been defined in section 65(91a) of the Finance Act as follows : "Residential Complex - Section 65(91a) 'Residential Complex‟ means any complex comprising of - (i) a building or buildings, having more than 12 residential units; (ii) a common area; and (iii) a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cro Marvel Projects Ltd. v/s Commissioner of Service Tax, Chennai [2008 (12) STR 603 (Tri.-Chennai)] wherein the demand of service tax was for the period 16 June, 2005 to November, 2005 under 'construction of complex‟ service under section 65(30a) of the Act. The Bench examined the scope of 'construction of complex‟ and the meaning of a 'residential complex‟ under section 65(91a) of the Finance Act and the observations are as follows:- "It is abundantly clear from the above provisions that construction of residential complex having not more than 12 residential units is not sought to be taxed under the Finance Act, 1994. For the levy, it should be a residential complex comprising more than 12 residential units. Admittedly, in the present case, the appellants constructed individual residential houses, each being a residential unit, which fact is also clear from the photographs shown to us. In any case, it appears, the law makers did not want construction of individual residential units to be subject to levy of service tax. Unfortunately, this aspect was ignored by the lower authorities and hence the demand of service tax. In this view of the matter, we are also no....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ouses, each block, being a residential unit which is an admitted fact. In any case, it appears that the legislature did not want to tax construction of individual residential units to the levy of service tax. We find that the learned Commissioner have erred in considering the approved plan for construction of more than 12 individual units on a large plot of land as a residential complex which we find is wrong and misconceived. Accordingly, we find that the show cause notice is not maintainable. Accordingly, we allow this appeal and set aside the impugned order. The appellant shall be entitled for consequential benefits in accordance with law." (emphasis supplied) 21. The same view was taken by a Division Bench of the Tribunal in Quality Builders & Contractor. 22. A Division Bench of the Tribunal in Shri A.S. Sikarwar vs CCE, Indore [Service Tax Appeal No. 871/2011 decided on 20.04.2012] also observed that service tax can be demanded only if the building concerned has more than 12 residential units in the building and such levy will not apply in cases where one compound has many buildings, each having not more than 12 residential units. This decision of the Tribunal was also assa....