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Judgment
The present appeal is directed against the impugned order dated 24.05.2017 passed by the Commissioner of Central Tax (Appeals) Bangalore whereby the appeal of the appellant is rejected.
Briefly the facts of the present case are that the appellant had purchased a Villa from RBD Shelters LLP and had paid Rs.3,35,009/- as service tax on the same. Thereafter, the appellant relies that they have inadvertently paid the service tax and the Department has treated the transaction as works contract whereas the transaction was for construction of a single residential house hence it was not liable to service tax and was exempted from the same vide Sl. No.14 of Notification No.25/2012-ST dated 20.06.2012. The Original Authority rejected the refund claim on the ground that the eligibility for a refund exists only when it involves construction of a single residential unit and not a residential unit as part of the residential complex. Aggrieved by the said order, the appellant filed appeal before the Commissioner who also upheld the same. Hence, the present appeal.
Heard both the parties and perused the records.
Learned Consultant appearing for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without properly appreciating the definition of residential complex. She further submitted that this issue is no more res integra and has been settled by various decisions of the Tribunal. She further submitted that the appellant has entered into a separate contract for the purchase of land and construction of individual house and has obtained the individual plan sanctioned from the local authority and further the contractor has charged Service Tax on the construction of individual house. She further submitted that the refund has been wrongly rejected on the ground that construction of various Villas falls within the meaning of residential complex. She further referred to the definition of 'residential complex'. She further submitted that the case of the appellant does not fall within the definition of 'residential complex'. She also submitted that the common facilities like parks and roads have been relinquished to the Government and hence the same is not the common properties of the owner rather it is public property which cannot be considered as common facilities and she has also brought on record the Relinquishment Deed. It is her further submission that the project is not a gated community as the park and roads have been relinquished to the Government. The same is clearly mentioned in the agreement, Schedule A of Construction Agreement entered by the appellant with the contractor itself. In support of her submission, she relied upon the following decisions:
Commissioner v. Macro Marvel Projects Ltd. - 2012 (25) STR J 154 (SC).
Macro Marvel Projects Ltd. v. CCE, Chennai - 2008 (12) STR 603 (Tri. Chennai).
A S Sikarwar v. CCE, Indore - 2012 (28) STR 479 (Tri. Delhi).
Alliance Infrastructure Projects Pvt. Ltd. v. CCE - Final Order No. 21009/2018 dated 24.07.2018.
Hari Narain Khandelwal v. CCE - 2017-TIOL-1932-CESTAT- Del (DB).
Beriwal Constructions Co. v. CCE, Agra - 2017 (5) GSTL 198 (Tri. All).
Baba Constructions Pvt. Ltd. v. CCE - 2018 (15) GSTL 345 (Tri. All) upheld by SC 2018 (15) GSTL J120 (SC).
4.1. She further submitted that this Tribunal in identical facts in the case of Ashish Oberoi vide Final Order No.20495/2019 has allowed the appeal of the appellant.
On the other hand, learned AR defended the impugned order.
After considering the submissions of both the parties and perusal of the material on record, I find that the appellant's case is squarely covered by the Order passed by this Tribunal in the case of Ashish Oberoi cited supra wherein the Tribunal as allowed the appeal of the appellant and the relevant findings recorded in Para 6 are reproduced herein below:
After considering the submissions of both the parties and perusal of the material on record, I find that in the present case, there is a separate agreement entered between the appellant and the contractor for construction of the individual house for which separate approval has been sanctioned. Further, I find that the definition of 'residential complex' is not applicable in the present case because all the conditions which are required to be fulfilled for a complex to be residential complex are not fulfilled in the present case. Further, I find that the ground for rejection is that there are common facilities like park and roads but in view of the Relinquishment Deed produced on record, I find that these common facilities like parks and roads have been relinquished to the Government and hence the same is not the common properties of the owner. It is rather a public property which cannot be considered as common facilities. Further, I find that the ratio of the decisions cited supra squarely applicable in favour of the appellant and by relying upon the ratio of the said decisions, I hold that the impugned order is not sustainable in law and therefore the same is set aside by allowing the appeal of the appellant with consequential relief, if any.
By following the ratio of the said decision, I allow the appeal of the appellant with consequential relief, if any.
(Order pronounced in the open court on 12/08/2021)