TaxTMI 
TaxTMI 
2025 (7) TMI 1139
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....ide letters dated 28.03.2011 and 20.09.2011 forwarded certain documents relating to RHB, balance sheet copy, work orders and calculation chart for the amounts received during 2009-10 and 2010-11 (relating to AVVNL). On the basis of the scrutiny of the said documents, two show cause notices dated 01.07.2011 and 12.10.2011 for the period 2009- 10 and 2010-11 were issued to the appellant demanding service tax for an amount of Rs.1,04,91,715/- and Rs.69,12,709/-. Following due process, the adjudicating authority however confirmed the two show cause notices vide common order-in-original No.52-53/2012-13 (ST)-COM dated 27.12.2012. It is against this order that the appellants are aggrieved with and have filed the present appeal. 3. The appellant submits that the two show cause notices in the first instance do not survive on grounds of limitation, since on an identical issue show cause notice dated 02.07.2010 for the period 2005-06 to 2008-09 was already issued and therefore any subsequent show cause notice incorporating extended period of limitation would not survive as no ground for willful suppression can thereafter be fastened. It be noted here that the dispute in the present show c....
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....w building or a civil structure or a part thereof, or of a pipeline or conduit, primarily for the purposes of commerce or industry; or (c) Construction of a new residential complex or a part thereof; or (d) Completion and finishing services, repair, alteration, renovation or restoration of, or similar services, I relation to (b) and (c); or (e) Turnkey projects including engineering, procurement and construction or commissioning (EPC) projects; In this regard, Certificate dated 05.02.2024, issued by RBH (reproduced below) is very pertinent and material to the issue involved as it clarifies the work order No.266 dated 26.05.2009 awarded to the appellant which is impugned in the present matter. 7. We find that the subject issue of construction of the dwelling units, is no more res integra and has been decided in a slew of cases. Reliance in this regard can be placed on the decision in the following case laws. : a) Onkar Lal Saini v. CCE - [F.O. No.ST/A/51134/2022 CU (DB) dt.23.11.2022] b) Prakash Builders v. CCE [2020 TIOL 636 CESTAT - DEL] c) Hari Narain Khandelwal v. CCE & ST [2017 (5) GLTL 277 (Tri)] d) A.S. Sika....
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.... the layout, and the construction of such complex is intended for personal use as residence by such person." It is abundantly clear from the above provisions that construction of residential complex having not more than 12 residential units is not sought to be taxed under the Finance 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....
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....stablished solely for educational, religious, charitable, health, sanitation or philanthropic purposes and not for the purposes of profit are not taxable, being non-commercial in nature. Generally, government buildings or civil constructions are used for residential, office purposes or for providing civic amenities. Thus, normally government constructions would not be taxable. However, if such constructions are for commercial purposes like local government bodies getting shops constructed for letting them out, such activity would be commercial and builders would be subjected to service tax." 11. In view of the aforesaid clarification and the binding precedents as held by Courts/Tribunal, no tax as such would be payable in the aforesaid circumstances. Tax is leviable on a commercial nature of the building constructed. AVVNL being a semi-government body engaged in the provisioning of civil amenities for the citizens and this project of theirs not venturing into commercial space would not be chargeable to service tax. 12. Further, in view of Board's Notification No.11/2010-ST and 45/2010- ST dated 27.02.2010 and 20.07.2010 respectively, services provided for transmission and dis....