TaxTMI 
TaxTMI 
2023 (10) TMI 1088
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...., confirmed the demand, interest and imposed penalties. On appeal, the Commissioner (Appeals) upheld the same. Hence, the appellant is now before the Tribunal. 2. The Ld. counsel Shri J. Shankar Raman appeared and argued for the appellant. It is submitted that the appellant is a contractor who had undertaken construction of residential complex for M/s. Tamil Nadu Housing Corporation, Vellore through tender. The appellant was registered with the Sales Tax Department and the contract undertaken was of composite nature involving material as well as services. The Show Cause Notice has been issued for the period 2005-2006 proposing to demand the Service Tax of Rs.56,428/- on construction of residential complex services. It is submitted by the Ld. counsel that for the period prior to 01.06.2007, the demand of Service Tax for composite construction activities cannot sustain as per the decision of the Hon'ble Supreme Court in the case of Commissioner of Central Excise and Customs, Kerala v. M/s. Larsen & Toubro Ltd. [2015 (39) S.T.R. 913 (S.C.)]. 3. The appeal ST/41650/2016 is with regard to the demand for the period 2007-2008 to 2009-2010 proposing to demand an amount of Rs.28,39,206/- ....
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....Finance Act, 1994 reads as under:- "Construction of complex" means- (a) Construction of 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 was tiling, was covering and wall papering, wood and metal joinery and carpentry, fencing and railing, construction of swimming pools, acoustic applications or fittings and other similar services; or (c) repair, alteration, renovation or restoration of , or similar services in relation to , residential complex;] 9.1 The definition of 'Residential Complex' as per Section 65(91a) of the Finance Act, 1994 is reproduced as under:- "any complex comprising of- (i) a building or buildings, having more than twelve residential 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 p....
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.... 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 single apartment intended for use as a place of residence; The above definition specifically excludes construction undertaken for personal use and such personal use includes permitting the complex for use as residence by another person. We find that the above exclusion clause covers the construction activity undertaken by the assessee." 12. In Commissioner of Central Excise, Service Tax and Customs, Bangalore-I Vs Nithesh Estates [2018 (17) G.S.T.L. 414 (Kar.)], it was held that the demand under Construction of Residential Complex services cannot sustain, when ultimate owner receives the property for personal use. Relevant part reads as under:- "18. The "Residential Complex‟ in question was undertaken to be constructed by the respondent assessee M/s. Nithesh Estates Limited for ITC Limited under the Contract dated 1-4-2006. It is equally undisputed before us that the construction activity in question was in its entirety sub-contracted by M/s. Nithesh Estates Limited to M/s. L....
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....ub-contractor who actually undertakes the construction activity. 22. In view of the undisputed factual matrix of the present case, that the sub-contractor M/s. Larsen and Toubro Limited has duly discharged the obligations to pay the Service Tax in the present Contract, we are at a loss to understand how the Revenue could again demand the Service Tax from the respondent assessee M/s. Nithesh Estates Limited, the Principal Contractor or the Developer, who did not undertake any construction activity in the present case. 23. In our opinion, the Learned Tribunal was perfectly justified and correct in applying the Circular, dated 24-5-2010 also, while holding that if the Government of India Department could be treated as using the "Residential Complex‟ in question constructed by NBCC for its "personal use‟, how another Corporate body like M/s. ITC Limited in the present case could be denied the benefit of that type of user of "Residential Complex‟ to be occupied by its Managerial Staff. The law does not envisage any such distinction among the Private Sector Corporate Entities and the Departments of Government or Government Companies or Undertakings. 24. The presen....