TaxTMI 
TaxTMI 
2025 (5) TMI 405
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.... appeals and appeal wise the facts are stated as hereinunder. Appeal No. E/41405/2015 2) M/s. Jay Pee Enterprises, the appellant herein has preferred this appeal assailing the impugned Order in Original No.04/2015 (ST) dated 12.02.2015 whereby the adjudicating authority has confirmed the demand along with interest and penalties for alleged nonpayment of service tax under "Construction of Residential Complex Services" for the period from 01-04-2009 to 31.03.2013 invoking the extended period of limitation. 3) The facts, in brief, are that M/s Jay Pee Enterprises are engaged in Construction of Residential Complex and have built a number of housing projects in and around Hosur. On a survey, Department found that they were rendering the taxable service of "Construction of Residential Complex Service", have neither registered themselves with Service tax department nor paid any service tax. Upon details being called the appellant vide its letter dated 10.02.2014, stated that they are constructing individual residential units nomenclature as "villas" to individual customers who purchased land from the owners of the land, got it registered in their name and then entered into an agreement....
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.... period of limitation. 5) The facts, in brief are that M/s. Jay Pee Developers, the appellant herein, are engaged in Real estate business and Construction of Residential Complex and have built a number of housing projects in and around Hosur. On a survey, Department found that they were rendering the taxable service of "Construction of Residential Complex Service" and "real estate agent service" and have neither registered themselves with Service tax department nor paid any service tax. Upon details being called the appellant vide its letter dated 24.12.2013 furnished the balance sheet & profit and loss account as well as a list of projects undertaken together with sample copies of sale and construction agreements. The Department was of the view that, though the appellant had built individual houses, the appellant had constructed residential complexes consisting of more than 12 units with common area and common facilities for which the appellant had collected amount separately apart from the construction cost and hence the services rendered by the appellant fell under the category of "Construction of residential complex services under Section 65 (105) (zzzh) of Finance Act. Furthe....
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....l houses. f) That construction of individual houses for personal use are not taxable even as per the Department Circular No.108/2/2009-ST dated 29.01.2009 and TRU letter F.No.B1/6/2005-TRU dated 27- 05-2005. g) Thus prior to 01-07-2012 as well as post 01-07-2012 construction of individual houses being single residential units cannot be made taxable under "construction of residential complex" services as proposed since even the mega exemption notification No.25/2012 dated 20.06.2012 at entry No.14 exempts construction of a single residential unit otherwise than as a part of a residential complex from levy of service tax. That there are numerous decisions in the appellant's favor and reliance is placed, among others, on the decisions in: i. Macro Marvel Projects Ltd v CST, Chennai, 2008 (12) STR 603 (Tri-Chennai) affirmed in Commissioner v Marco Marvel Projects Ltd, 2012 (25) STR J 154 (SC) ii. Commr. Of C.Ex & ST, Bengaluru I Commissionerate v Alliance Infrastructure Projects Pvt Ltd, 2022 (56) GSTL 3 (Kar) iii. Sikarwar v CCE, Indore, 2012 (28) STR 479 (Tri-Del) iv. Naveen Kumar v CCE, Jaipur-I, 2017 (49)STR 175 (Tri-Del) v. Final Order No.40124/2025 dated 27.01.2025 ....
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.... 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 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, - (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; 65(30a) "construction of complex" means - (a) construction of a new residential complex or a part thereof; or (b) completion and finishing services in relation to residential complex such as glazing, plasterin....
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.... twelve residential units. Therefore, by virtue of these individual houses not being a building or buildings having more than twelve residential units, they do not satisfy clause (i) of Section 65 (91a) and are therefore straightaway ousted from the ambit of the definition. 12) We find that a view on similar line had earlier been taken by this Tribunal in Macro Marvel Projects Ltd v CST, Chennai, 2008 (12) STR 603 (Tri-Chennai) which stood affirmed in Commissioner v Marco Marvel Projects Ltd, 2012 (25) STR J 154 (SC). The same ratio emanates from a catena of decisions as can be seen from Commr. Of C.Ex & ST, Bengaluru I Commissionerate v Alliance Infrastructure Projects Pvt Ltd, 2022 (56) GSTL 3 (Kar), Sikarwar v CCE, Indore, 2012 (28) STR 479 (Tri-Del), Naveen Kumar v CCE, Jaipur-I, 2017 (49)STR 175 (Tri-Del), and Final Order No.40124/2025 dated 27.01.2025 of this Tribunal in M/s.K.B & Co v The Commissioner of GST & Central Excise, Tirunelveli. We refrain from citing other decisions in the similar vein, in the interest of avoiding prolixity. 13) It is also pertinent that the impugned OIOs, have proposed to confirm the demands only under Construction of Complex Services for the p....
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.... has merely gone on to allege that the appellant has rendered "real estate agent services" and does not specify which activity or activities, as a real estate agent or that as a real estate consultant, is that/or are those, which the Department is seeking to consider as the service/services rendered by the appellant, particularly when the definition states that "real estate agent" means a person who is engaged in rendering any service in relation to sale, purchase, leasing or renting of real estate and includes a real estate consultant and the definition of real estate consultant states that "real estate consultant" means a person who renders in any manner, either directly or indirectly, advice, consultancy or technical assistance, in relation to evaluation, conception, design. Development, construction, implementation, supervision, maintenance, marketing, acquisition or management, of real estate. We find that in the impugned OIO, the adjudicating authority has merely cited terms of a power of attorney given by a customer to the appellant to hold that the appellant has rendered all the services as stated in the power of attorney and that they are undertaken in relation to sale of ....