2025 (7) TMI 412

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....i Sanjay Chugh Appellant for rectification of mistake in final order No 55484/2024 dated 08.04.2024 passed by this bench in this appeal. 2. We have heard learned counsel for the appellant applicant and learned authorised representative for the Revenue and perused the records. 3. In the final order dated 8.4.2024 this appeal was partly allowed as follows : "14. In view of the above, the appeal is partly allowed and the impugned order is modified to the extent of setting aside the demand of Rs. 1,28,72,584/- under the head "management, maintenance or repair service' along with interest on such amount and upholding the rest of the demand with interest. The amounts of penalty under section 78 also stands reduced proportionately. ....

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....the Finance Act. The submission of the learned counsel for the appellant is that this exclusion clause of the definition was not considered in the Final Order and on a consideration of the same, the demand of service tax on the property rented to be a hostel may have to be set aside. 6. Learned authorised representative for the Revenue fairly submits that there was an exclusion clause excluding properties rented as hostels in the definition. 7. We do find that section 65(105) (zzzz) of the Finance Act, as applicable during the relevant period, is as follows: Section 65: Definitions: In this Chapter, unless the context otherwise requires,- .... (105) "taxable service" means the service provided or to....

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....e purposes of this sub-clause, an immovable property partly for use in the course or furtherance of business or commerce and partly for residential or any other purposes shall be deemed to be immovable property for use in the course or furtherance of business or commerce. 8. From the above, by virtue of the exclusion part in Explanation 1 to section 65(105) (zzzz), services provided in relation to renting of buildings used for residential purposes including hostels and hotels were specifically excluded from the definition of taxable service under section 65(105)(zzzz). This Explanation was not considered in the Final Order and hence the demand of service tax on the property rented to be used as hostel was upheld. This mistake that is app....