Page 156 - GSTL_2nd April 2020_Vol 35_Part 1

58 GST LAW TIMES [ Vol. 35
same to the Central Government or not. Also, it is not the case of the respondents
that the vendor of the petitioners did not pass on the service tax collected from
the petitioners to the Central Government. The petitioners had given even the
service tax registration number of the vendor (4th respondent). Nothing prevent-
ed the 1st respondent from verifying whether the said payment of Rs. 33,77,539/-
made by the petitioners on 19-6-2014 was passed on by the 4th respondent to the
Central Government by verifying the Service Tax Returns filed by the 4th re-
spondent.
21. In any event, petitioners have filed along with the reply affidavit in
this Writ Petition, proof of payment of service tax by the 4th respondent collected
from Petitioner No. 1 to the Central Government, in relation to the property sold
to the petitioner under the sale deed dated 9-5-2014. This is not disputed by the
respondents. So, even on this aspect there is no dispute now.
22. Therefore, this ground raised by the 1st respondent in the im-
pugned order also cannot be accepted.
RE : G.D. Builders’ case relied by the respondents
23. Coming to the third ground raised by the 1st respondent in the im-
pugned order for rejecting the claim of the petitioners, the 1st respondent had
relied upon the decision in G.D. Builders’s case (supra), but the said decision was
overruled by the Supreme Court in Commissioner, Central Excise and Customs, Ker-
ala v. Larsen and Toubro Limited [(2016) 1 SCC 170 = 2015 (39) S.T.R. 913 (S.C.)],
specifically. The Supreme Court held that the judgment in G.D. Builders’s case
(supra) was wholly incorrect in its conclusion that the Act contains both the
charge and machinery for levy and assessment of service tax on indivisible
works contracts.
24. Therefore, the said ground of rejection of the claim of the petitioners
also cannot be accepted.
RE : No mechanism for ascertaining value of service component in contracts for
construction of complexes
25. Coming to fourth ground, whether there is a mechanism for ascer-
taining value of service component in case of composite contracts is concerned,
to levy service tax, we would like to state that Section 65BB(44) of the Act defines
the term “service” as an activity carried out by a person for another for consider-
ation, and includes a declared service, but would not include an activity which
constitute merely a transfer of title in case of immovable property by way of sale,
gift or in any other manner, or such transfer, delivery or supply of any goods,
which is deemed to be a sale within the meaning of clause (29A) of the Article
366 of the Constitution of India or a transaction in money or an actionable claim.
There are two other categories also mentioned with which we are not concerned.
26. Section 66E lays down what constitute “declared services”. Clause
(b) thereof mentions construction of a complex, building, civil structure or a part
thereof, including a complex or building intended for sale by a buyer fully or
partly, except where the entire consideration is received after issuance of comple-
tion certificate by the competent authority.
27. Clause (h) of Section 66E mentions that the “service portion in the
execution of a works contract” is also a declared service.

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