TaxTMI 
TaxTMI 
2025 (3) TMI 1063
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....the activity for such construction is taxable under 'Construction of Residential Complex Service' towards which the appellant was liable to pay the tax. The auditors quantified the said liability at Rs.5,65,980/- along with the interest of Rs.3,07,200/-. The appellant deposited the same, however, under protest vide its letter dated 19.09.2015 mentioning that the appellants have not charged service tax on the amounts received from their customers during the said disputed period. Later, the appellant filed the refund claim of Rs.8,73,180/- (565980 + 307200) on 11.09.2015. However the claim was initially rejected vide Order-in-Original No. 17/2016-17 dated 16.05.2016. Appeal against the said order has been rejected vide the impugned Order-in-Appeal. Being aggrieved the appellant is before this Tribunal. 2. We have heard Shri Rajagopal Chandrashekhar, learned Chartered Accountant for the appellant and Shri Aejaz Ahmad, learned Authorized Representative for the respondent. 3. Learned Chartered Accountant for the appellant has submitted that the present case relates to refund of amount of tax and interest paid under protest. No show cause notice to adjudicate the issue of taxabilit....
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....ive has mentioned that project 'Pleasure' has common garden, common play area, community hall and common water supply arrangement and common pavement road. All these are well covered under the term 'common area'. Several facilities are also common for the residential duplex houses in project 'Pleasure'. The project constructed is therefore a residential complex in terms of Section 65(91a) of the Act. The amount of consideration received is thus taxable. The appellant has not discharged the said tax liability and has also not produced any evidence to show that the burden of tax has not been passed to the customers. Therefore, the impugned refund claim has rightly been rejected also for the reason of bar of unjust enrichment. Learned Departmental Representative has relied upon the decision of the Tribunal in the case of Modi & Modi Constructions Vs. Commr. of Cus., C.Ex. & S.T., Hyderabad-II reported as 2021 (45) GSTL 398 (Tri.- Hyd). With these submissions, the present appeal is prayed to be dismissed. 5. Having heard the rival contentions and perusing the records, we foremost peruse Section 65(91a) of the Act which defines 'Residential Complex' as follows: "(91a) "resid....
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....e Act, 1994. For the levy, it should be a residential complex comprising more than 12 residential units. Admittedly, in the present case, the appellants constructed individual residential houses, each being a residential unit, which fact is also clear from the photographs shown to us. In any case, it appears, the law makers did not want construction of individual residential units to be subject to levy of service tax. Unfortunately, this aspect was ignored by the lower authorities and hence the demand of service tax. In this view of the matter, we are also not impressed with the plea made by the appellants that, from 1-6-2007, an activity of the one in question might be covered by the definition of 'works contract' in terms of the Explanation to section 65 (105)(zzzza) of the Finance Act, 1994 as amended. 'According to this Explanation, 'construction of a new residential complex or a part thereof' stands included within the scope of 'works contract'. But, here again, the definition of 'residential complex' given under section 65(91a) of the Act has to be looked at. By no stretch of imagination can it be said that individual residential units were intended to be considered as a "res....
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.... under 65(105)(zzzh) only if the building concerned has more than 12 residential units in the building and such levy will not apply in cases where in one compound has many buildings, each having not more than 12 residential units. Therefore, we set aside the impugned order and allow the appeal." 5.4 This view is also supported by the decision of CESTAT, Delhi in the case of Madhukar Mittal Vs. Commissioner of Central Excise, Panchkula reported as 2015(40) S.T.R. 969 (Tri.- Del.), wherein it has been held - "5. In view of above discussion, the judgments in the case of Macro Marvel Projects Ltd. v. CST, Chennai (supra) and A.S. Sikarwar v. CCE, Indore (supra) are not applicable to the facts of the present case because in those cases individual residential houses were constructed which did not satisfy the definition of residential complex reproduced above. Thus, we hold that impugned service clearly gets covered under construction of complex service liable to service tax." 5.5 Though the department has relied upon the decision of this Tribunal in the case of Modi & Modi Constructions (supra), however, we observe that the facts of the present case are similar with the fa....