2023 (3) TMI 445

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....f Service Tax, Chennai. 2. The allegations against the assessee are that they were engaged in the construction of residential complexes, which became taxable on 16.06.2005, but they have taken registration with the Department only during June 2008. They have also not filed periodical ST-3 returns. 3. It appeared to Revenue that the assessee did not pay appropriate Service Tax on the construction activity, under the classification 'Construction of Residential Complex Service'. Hence Notices were issued to them vide Show Cause Notice No. 122/2011 dated 04.04.2011 demanding Service Tax of Rs. 2,64,33,866/- for the period from May 2006 to September 2009 and a follow up Show Cause Notice No. 143/2011 dated 06.04.2011 was issued demanding S....

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.....2011 and none of the ingredients set out in the proviso to Section 73(1) of the Finance Act, 1994 have been met. They have also been filing ST-3 returns and paying Service Tax wherever it was legally applicable. 5.4 She has placed reliance on the following decisions in their favour: - (i) M/s. Real Value Promoters Pvt. Ltd. v. Commissioner of G.S.T. and Central Excise, Chennai & ors. [Final Order Nos. 42436-42438 of 2018 dated 18.09.2018 - CESTAT, Chennai]. (ii) M/s. Vijay Shanthi Builders Ltd. v. Commissioner of Service Tax, Chennai [2018 (9) G.S.T.L. 257 (Tri. - Chennai)]; (iii) M/s. Golden Ventures v. Commissioner of C.E. & S.T., Chennai [Final Order No. 41938 of 2018 dated 02.07.2018 - CESTAT, Chennai] ....

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....onstruction of flat / apartment. A sale deed is later entered into only for the undivided share of land and no sale deed is executed for the completely constructed flat. The stamp duty was paid only on the cost of undivided share of land and not on the complete constructed apartment. Thus the appellant undertakes construction service to their clients. We find that an element of service is present in the agreements is not disputed. The issue is whether the appellant has rendered pure service to his clients which would make the service taxable under 'Construction of Residential Complex Service' as done by the impugned order. We find that the issue relating to the demand of Service Tax on construction of residential complexes by entering into ....

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....espectively, of sub section (105) of the section 65 would cover only pure service contracts, without any transfer of property in goods." The co-ordinate Bench, in its order, after considering the Hon'ble Supreme Court's judgment in the case of CCE vs. Larsen & Toubro (supra), have held that composite works contracts cannot be brought within the fold of commercial or 'industrial construction service' or 'construction of complex service' up to 01/06/2007 i.e. till the 'works contract service' was brought under the fold of service tax levy, and allowed the appeals with consequential benefit. The Hon'ble Supreme Court in the Larsen and Toubro judgment had held that 'construction services' under section 65(105)(zzq) and 'construction of compl....

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....mber 2009 in respect of project namely, SIS Danube and under the category of 'Works Contract' for the period from March 2008 to September 2009 in respect of project namely, SIS Safaa and another Notice dated 06.04.2011 proposing to levy Service Tax under the category of Works Contract for SIS Safaa for the period from October 2009 to June 2010. The issue of levy of service tax under 'Construction of Residential Complex Service' pre and post 01/06/2007 has already been discussed above and held against Revenue and in favour of the appellant, hence levy in the impugned order under 'works contract' from March 2008 to June 2010, alone needs to be examined now. 9. Works Contract Service came under Service Tax levy with the introduction of sect....