TaxTMI 
TaxTMI 
2025 (2) TMI 104
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....s holding Service Tax Registration No. AAAPT7765KSD001. 2.3 During the course of an investigation conducted by the department and scrutiny of Annual Financial reports for the years 2010-11 to 2014-15, it was found that the appellants were aware of the provisions of service tax law, but had obtained their service tax registration belatedly and without properly determining their service tax liability and correct payment of service tax in respect of taxable services. Further, it was also found that the appellants had opted not to file the periodical ST-3 returns with the intention of evading service tax. Therefore, the department conducted detailed investigation and issued show cause notice dated 15.05.2017, demanding service tax on various amounts received by the appellants along with applicable interest, in respect of taxable services provided by them, on which appropriate service tax was not paid. Further, the SCN dated 15.05.2017 also proposed for imposition of penalties under Section 75, 76, 77 and 78 of the Finance Act, 1994. 2.4 In adjudication of the case, the original authority i.e., Assistant Commissioner of CGST & Central Excise, Division-I, Thane had confirmed the propos....
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....t (B to F) was completed and sales have been recognised in the books of account.' On the above basis, the appellants have claimed that the construction in respect of B, C, D, E, F, G & H wings of the project was completed before the Service tax was made applicable to the Construction of Residential Complex services. Further, they also claimed that certain non-taxable amounts, receipt of amount/advance received for the completed flats have been taken into account for demand of service tax. In view of the above, the appellants have pleaded that their appeal against the impugned order be entertained. 4. On the other hand, learned Authorized Representative (AR) appearing for Revenue reiterated the findings in the impugned order and brought to the notice of the Tribunal that the Municipal Corporation of Greater Mumbai normally issue 'Occupation and Completion Certificate' and produced a sample copy of such certificate issued by the Executive Engineer (Shri Vinod Kondiram Kekan) on 26.04.2021 on the basis of development competition certificate submitted by the architects of a builder and as per completion certificate dated 17.04.2021 issued by Chief Fire Officer. Accordingly, learned AR....
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....es 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 person for designing or planning of the layout, and the construction of such complex is intended for personal use as residence by such person. Explanation.-For the removal of doubts, it is hereby declared that for the purposes of this clause,- "personal use" includes permitting the complex for use as residence by another person on rent or without consideration; "residential unit" means a single house or a single apartment intended for use as a place of residence; (105) "taxable service" means any service provided or to be provided, ... (zzzh) to any person, by any other person, in relation to construction of complex. Inserted by the Finance Act, 2010, w.e.f. 1-7-2010.Explanation.-For the purposes of this sub-clause, construction of a complex which is intended for sale, wholly or partly, by a builder or any person authorised by the builder before, during or after construction (except in cases for which no sum is received from or on behalf of the prospective buyer by the builder or a person authorised b....
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....ld be out of the ambit of the service tax levy. Further since the appellant have not disputed the liability to service tax on the remaining Advance amount of Rs. 5429000/-, the matter is set at rest and the appellant's contention is allowed to this extent. 6.4 As regards, the deposits of Rs. 156830/-, ...towards one time deposit collected for maintenance relevant provisions of the Maharashtra Ownership Flats (Regulation of the Promotion of construction, Sale, Management and Transfer) Act, 1963,.....I find that the appellant has also not produced the corresponding documents as required by the adjudicating authority at this appellate stage also to substantiate that the amounts were indeed one time deposits, therefore no credibility can be accorded to the contention of the appellant in this regard, I therefore uphold the impugned order to this extent. 6.5 It is held by the adjudicating authority that the Advances amount of Rs. 7233134/- for Wing A was also leviable to service tax received by the appellant during 2010-11 as the full consideration was not received". In this regard, I observe that Balance Sheet as on 31/03/2010 showed an Advance amount of Rs. 7033134/- and that the....
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.... appellant. Similarly, Advances received for A Wing as on 31/3/2012 is Rs. 6007134/-. Therefore the amounts received as Advances for SRA projects for 2012-13 would be Rs. 637800/-, which is subject to service tax as contended by the appellant. 6.11 It is contended that Other Advances of Rs. 1022000/- for FY 2012-13 pertains to sale of shops,of which O.C. was obtained on 25/01/2010....Since the letter dated 25/01/2010 cannot be treated as O.C, as already discussed above, the subject contention of the appellant is rejected....... 6.12 As regards, the deposits of Rs. 539500/-, the adjudicating authority same has repudiated the appellant's claim that the same is towards one time deposit collected for maintenance charges for which O.C./C.C was received before the imposition of service tax on construction services....I find that the appellant has not produced the corresponding documents.. to substantiate that the amounts were indeed one time deposits. Therefore, no credibility can be accorded to the contention ... 6.14 Further the Advances received towards SRA projects amounting to Rs. 45340552/- during 2013-14 are also conceded to be subject to service tax, and hence no further....
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....ich Cenvat credit was claimed. It was observed that the amount so claimed as Cenvat credit was already accounted for in their books of account. I find that the appellant have not produced the requisite details or evidences to answer and clarify the charge made at para 28 of the impugned order that "double benefit of the credit has been availed by the appellant deliberately". Therefore, in the absence of any clarifications forthcoming from the appellant in this regard, I find no grounds to allow the benefit of Cenvat credit of the amount of RS. 1297934/- claimed by the appellant. Also the claim by the appellant that Rs. 2458652/- has been paid towards Service Tax liabilities could not be verified as copies of the challans were not made available... In view of the discussions made hereinabove, the impugned order is accordingly modified. The appeal is disposed off accordingly in the above terms." 9. On perusal of the above findings of the learned Commissioner (Appeals) and the order passed by him in the impugned order, it transpires that the disputed service tax liability was decided mainly on the following basis viz., (i) the letter dated 25/01/2010 cannot be termed as "Completion ....
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....levant legal provision of such act are extracted and given below for ease of reference: "270A. No person shall occupy or permit to be occupied, or use or permit to be used, any premises or part thereof constructed or reconstructed after the date of the coming into force of the Bombay Municipal Corporation (Amendment) Act. 1953, until he has obtained a certificate from the Commissioner to the effect that there is provided within or within a reasonable distance of the premises, a supply of pure water to the persons intending to occupy or use such premises or, where the premises are situated within any portion of 5[Brihan Mumbai] in which a public notice has been given by the Commissioner under section 141, until he has obtained a certificate from the Commissioner to the effect that a supply of pure water has been provided for the premises from a municipal water work. 353A. (1) every person who employs a licensed surveyor or person approved by the Commissioner to erect a building or execute any such work as is described in section 342, shall, within one month after the completion of the erection of such building or the execution of such work, deliver or send or cause to be delive....
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.... Joint Site Inspection through 'Common Completion Request Form' along with compliance of OC/BCC conditions as per Standard Operating Procedures. Thereafter the Occupancy Certificate/BCC is granted by the MCGM authorities. Therefore, it clearly transpires from the above that the certificate issued by MCGM on completion of building under the Mumbai Municipal Corporation Act is not only termed as occupancy certificate but also completion certificate with title "FULL OCCUPANCY CERTIFICATE Under Regulation 6(7) and BUILDING COMPLETION CERTIFICATE Under Regulation 6(6)". However, I find that the appellants have not provided any such certificate issued by the competent authority i.e., MCGM. 12. I further find that the claim made by the appellants that the completion certificate dated 25.01.2010 issued by Brihan Mumbai Mahanagar Palika is the 'completion certificate' for the purpose of service tax levy, is not factually correct as the endorsement of the authorities is in respect of "the part development work of building comprising of wing B, C, D, E & F, Ground (Pt.) + Stilt (Pt.) + 8 upper floors, wing G, Ground + Upper floor & wing H, ground floor on plot bearing C.T.S. No. 3092....