TaxTMI 
TaxTMI 
2024 (5) TMI 1197
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....tive of the realization from the customers. However, the details furnished by appellant to the Audit did not substantiate their claim. In respect of the remaining 6 flats, the appellant had not paid any service tax contending that these flats were sold after obtaining completion certificate. The appellant also relied on the Board's circular No.108/02/2009-ST dt. 29.01.2009 to contend that they are not required to pay service tax. After investigations, separate show cause notices for the period January 2009 to September 2009 and October 2009 to September 2010 were issued to the appellant proposing to demand service tax under Construction of Residential Complex Services along with interest and for imposing penalties. After due process of law, the original authority confirmed the demand for the entire period along with interest and imposed penalties. Aggrieved by such order, the appellant is now before the Tribunal. 2. The Ld. Counsel Ms. Radhika Chandrasekar appeared and argued for the appellant. It is submitted by the Ld. Counsel that appellant had undertaken development of the residential complex consisting of 172 units. They had discharged service tax for 166 units. With respect ....
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....n that in case of composite contracts involving both use of materials as well as rendition of services the category applicable is the works contracts service. The decision of the Tribunal on this point in the case of Jain Housing & Construction Ltd. Vs CST - 2023 (10) Centax 170 (Tri.-Mad) was relied by the Ld. Counsel. It is submitted that the said decision was maintained by the Hon'ble Apex Court as reported in (2023) 10 Centax 171 (SC). The decision of the Tribunal in the case of Srinivasa Shipping & property Developers Ltd. Vs CGST & Central Excise, Chennai South vide Final Order No.41107-41108/2023 dated 08.12.2023 was also relied. 2.4 It is submitted that for the period subsequent to 1.7.2010, i.e. from July 2010 to September 2010 the appellant has discharged service tax which has been noted in para-4 of the SCN No.164/2011 dt. 8.4.2011 itself. The appellant has thus paid Rs.67,77,193/- for the period from July 2010 to September 2010. The said amount has been appropriated by the adjudicating authority and the appellant is not contesting this amount. It is submitted that the SCN has proposed demand only for the balance amount even though the period has been stated to be upto ....
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....mmon water supply or effluent treatment system, located within a premises and the layout of such premises is approved by any authority under 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". There is no dispute that the complex constructed by both the assessees in these appeals are covered by the definition of "residential complex" as given in Section 65(91a). There is also no dispute that both the assessees had engaged contractors for construction of the complexes. The dispute in these appeals is as to whether the assessees would be liable to pay Service Tax on the amounts charged by them from their customers with whom they had entered into agreements for construction of the residential units and whose possession was to be handed over on completion of the construction and full payment having been made by the customers. It is seen that on this point, the Tax Research Unit of the Central Board of Excise & Customs, which is a wing of the C.B.E. & C. dealing with legisl....
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.... In this regard, para 5 of this judgment is reproduced below :- "5. In Maharashtra Chamber of Housing Industry v. Union of India - 2012 (25) S.T.R. 305 (Bom.), the validity of the 'Explanation' added to Sections 65(105)(zzq) and (zzzh) was challenged on several grounds. The Bombay High Court, also considered the issue whether the explanation was prospective or retrospective in operation and ruled that the explanation inserted by the Finance Act, 2010 brings within the fold of taxable service a construction service provided by the builder to a buyer where there is an intended sale between the parties whether before, during or after construction; that the 'Explanation' was specifically legislated upon to expand the concept of taxable service; that prior to the explanation, the view taken was that since a mere agreement to sell does not create any interest in the property and the title to the property continues to remain with the builder, no service was provided to the buyer; that the service, if any, would be in the nature of a service rendered by the builder to himself; that the explanation expands the scope of the taxable service, provided by builders to buyers pursuant to an int....