2024 (7) TMI 553
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....services provided by the appellant are taxable under Section 65 (25b) /65 (30a) of the Finance Act 1994 under Construction of Complex Services and Construction of Residential Complex Services. Therefore, show cause notice dated 15.04.2010 was issued to the appellant proposing to demand the service tax for the period from 2004-05 to 2008-09 along with interest and for imposing penalties. After due process of law, the original authority confirmed the demand of service tax along with interest and imposed penalties. Aggrieved by such order, the appellant is now before the Tribunal. 2. The Ld. Counsel Ms. Radhika Chandrasekhar appeared and argued for the appellant. It is submitted that the activity of the appellant merits' classification under the category of Works Contract Services. Works contract are basically contracts which involve both material and services and are indivisible contracts in contrast to contract of supply of materials or rendition of services. As per section 65 (105) (zzzza) of the Finance Act 1994, Works Contract Services are defined and has come into force only with effect from 01.06.2007. It is submitted that the issue as to whether composite indivisible contract....
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....tigations as to whether service tax can be demanded on composite contracts which are indivisible in nature. These contracts involve supply of materials as well as rendition of services. The appellant had cooperated with the department and furnished all details when called for by the department. Hence, there is no suppression of facts with intent to payment of service tax. The Ld. Counsel prayed that the appeal may be allowed. 7. Ld. AR Shri. Harendra Singh Pal, appeared and argued for the department. The findings in the impugned order was reiterated. 8. Heard both sides. 9. The first contention put forward by the appellant is that the demand for the period prior to 01.06.2007 cannot sustain for the reason that the works executed by them are indivisible contracts involving both supply of materials as well as rendition of services. From the show cause notice as well as the impugned order, it can be seen that the appellant has carried out activities as a builder/developer/promoter for construction of residential flats as well as other complexes. The description of documents examined during investigation the department are given in para 2.4 of the impugned order. This shows copy of ....
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....case of Jain Housing and Construction Limited versus Commissioner of ST vide Final Order No. 40077-40079/2023. This decision of the Tribunal was appealed by the department before the Hon'ble Apex Court. However, the Apex Court maintained the decision of the Tribunal by dismissing the appeal filed by the department as reported to (2023) 10 Centax 171 (S.C.). The same issue has been considered in the case M/s. BBC City Park which is a Sister concern of the appellant. As per Final Order No. 40599/2024 dated 09.05.2024, the Tribunal set aside the demand. The relevant para reads as under:- 6. Heard both sides. 7. The issue is whether the demand of service tax raised against the appellant for the Construction of Residential Complex Services is sustainable for the period prior to 01.07.2010. The appellant being a Promoter/Developer/Builder of residential projects has entered into Joint Development agreement with land owners where the parties agree to jointly promote and develop a construction project. The relevant paras of the Show Cause Notice reads as under:- "8. Perusal of above agreement, clearly shows that the assesse are the builders of the residential apartments, based on a j....
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....ex". The expression "construction of complex" was defined in sub-section (30a) of Section 65 and accordingly this expression covered - "(a) construction of a new residential complex or a part thereof or (b) completion of 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 applications or fittings and other similar services; or (c) repair, alteration, renovation or restoration of, or similar services in relation to, residential complex". The expression residential complex was defined in Section 65(91a) of the Finance Act, 1994 as 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 any authority under law for the time being in force, but does not include a complex which is constructed by a person dire....