TaxTMI 
TaxTMI 
2025 (6) TMI 766
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....oter / builder / developer who himself provides service of design, planning and construction and after such construction the ultimate owner receives such property for his personal use, then such activity would not be subjected to service tax because this case would fall under the exclusion provided in the definition of residential complex. 1.2 Consequent to verification exercise conducted by the Departmental Officers, the Appellant was issued with a Show Cause Notice No. 243/2011 dated 21.04.2011 demanding service tax in respect of Construction of Residential Complex Service during the period from October 2005 to March 2010 invoking larger period. The Appellant assailed the allegations contained in the Show Cause Notice contending that they are eligible for the exemption as per CBEC Circular dated 29.01.2009, and that out of 18 flats constructed, and 6 flats delivered to the 6 ultimate owners and only 12 flats were constructed for outsiders for consideration. It was also submitted that the Adjudicating Authority has not extended the 67% abatement as required and also they had not collected any amount towards service tax from the customers. It appears that that Appellant had filed ....
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.... Commercial or Industrial Construction is hit by the position of law laid down in Real Value Promoters Pvt. Ltd. supra. 2.3 He has submitted that similar issue was decided in the case of Jain Housing & Construction Ltd. Vs. Commissioner of Service Tax, Chennai [2023 (10) CENTAX 170 (Tri.-Mad.)] which has been upheld by the Hon'ble Supreme Court reported in 2023 (10) CENTAX 171 (SC). 3. The Ld. Authorised Representative Mr. Harendra Singh Pal representing the Department has affirmed the findings in the impugned order dated 28.10.2015. 4. We have heard both sides and have gone through the written and oral submissions and also evidences available on record including the case laws relied upon. 5. The issues that are to be decided in this appeal are: - i. Whether the service tax demand raised on the Appellant under Construction of Residential Complex Service for the period from October 2005 to March 2010 under Section 73(1) of the Finance Act, 1994 is sustainable or not? and, ii. Whether invoking larger period and imposition of penalties are justified or not? 6. Investigations conducted in the Appellant's case has revealed that they are the promoters of construction of resident....
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....the services of CICS and CCS would cover only pure service activities, as any contrary view would imply that the Union Government can levy service tax on the gross amount, including the value of transfer of property in goods also, which is constitutionally impermissible. The exemption notifications issued at the discretion of the executive are not sufficient to sustain the levy. The Hon'ble Apex Court has also observed that only with the introduction of WCS as a separate taxable service, statutory mechanism to exclude the value of transfer of property in goods has been prescribed. 10. The effect of the above decision is that CICS and CCS, as defined under clauses (zzq) and (zzzh), respectively, of sub section (105) of the section 65 would cover only pure service contracts, without any transfer of property in goods. 11. In various decisions the importance of classification of services has been laid down and it has been held that once the show cause notice proposes demand of service tax under a particular category of taxable service, the adjudicating / appellate authorities cannot travel beyond the scope of allegations in the show cause notice and confirm the demand under a differe....
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....e projects executed by them for the period prior to 1.6.2007 being in the nature of composite works contract cannot be brought within the fold of commercial or industrial construction service or construction of complex service in the light of the Hon'ble Supreme Court judgment in Larsen & Toubro (supra) upto 1.6.2007. b. For the period after 1.6.2007, service tax liability under category of "commercial or industrial construction service‟ under Section 65(105)(zzzh) ibid, "Construction of Complex Service‟ under Section 65(105)(zzzq) will continue to be attracted only if the activities are in the nature of services‟ simpliciter. c. For activities of construction of new building or civil structure or new residential complex etc. involving indivisible composite contract, such services will require to be exigible to service tax liabilities under "Works Contract Service‟ as defined under section 65(105)(zzzza) ibid. d. The show cause notices in all these cases prior to 1.6.2007 and subsequent to that date for the periods in dispute, proposing service tax liability on the impugned services involving composite works contract, under "Commercial or Industrial Co....