Residential Complex Definition – CESTAT Sets 12-Unit Limit

Case Details: Priyadarshini Construction Versus Commissioner of Central Goods and Service Tax, Excise and Customs, Bhopal (2025) 30 Centax 189 (Tri.-Del)

Judiciary and Counsel Details

• Dr. Rachna Gupta, Member (J) & Shri P. Anjani Kumar, Member (T)
• Shri Rajagopal Chandrashekhar, Chartered Accountant, for the Appellant.
• Shri Aejaz Ahmad, Authorised Representative, for the Respondent.

Facts of the Case

The assessee, a real estate developer, undertook a residential housing project titled “Pleasure”, wherein it constructed independent duplex houses—each being a self-contained unit in a standalone building. The construction activity involved no building comprising more than twelve residential units. Despite believing that the construction did not fall within the scope of taxable services, the assessee paid service tax under protest under the category ‘Construction of Residential Complex Service’ as defined under Section 65(91a) of the Finance Act, 1994. Thereafter, the assessee filed a refund claim before the jurisdictional authority, asserting that the nature of construction—comprising individual duplex units in buildings with twelve or fewer units—did not satisfy the statutory definition of ‘residential complex’. The refund claim was, however, rejected by the department.

Aggrieved by the rejection, the assessee preferred an appeal before the Delhi CESTAT, contending that the service in question was not taxable and that the tax paid under protest was liable to be refunded. In support, the assessee placed reliance on the statutory language of Section 65(91a) and the judicial interpretation laid down in Macro Marvel Projects Ltd. v. CCE 2008 (12) S.T.R. 603 (Tri-Mad).

CESTAT Held

The Hon’ble Delhi CESTAT held that individual buildings with twelve or fewer residential units do not fall within the definition of ‘residential complex’ under Section 65(91a) of the Finance Act, 1994. Since the assessee’s project involved construction of independent duplex houses, the activity was not liable to service tax under the said category. Relying on the aforementioned judicial precedents, the Tribunal concluded that the assessee was entitled to a refund of the tax paid under protest.

List of Cases Cited

• A.S. Sikarwar v. Commissioner — 2012 (28) S.T.R. 479 (Tribunal) — Followed [Paras 3.1, 5.3]
• A.S. Sikarwar — decided on 1-8-2013 by Madhya Pradesh Court — Referred [Para 3.1]
• Alliance Infrastructure Projects Pvt. Ltd. v Commissioner — Service Tax Appeal No. 507/2008 by CESTAT, Bangalore — Referred [Para 3.1]
• Beriwal Constructions Co. v. Commissioner — 2017 (5) G.S.T.L. 198 (Tribunal) — Referred [Para 3.1]
• Commissioner v. Macro Marvel Projects Ltd. — 2012 (25) S.T.R.J154 (S.C.) — Relied on [Paras 3.1, 5.2]
• J.R. Construction v. Commissioner — Final Order No. 50618/2020 by CESTAT, New Delhi — Referred [Para 3.1]
• Macro Marvel Projects Ltd. v. Commissioner — 2008 (12) S.T.R. 603 (Tribunal) — Followed [Paras 3.1, 5.2, 5.3, 5.5]
• Madhukar Mittal v. Commissioner — 2015 (40) S.T.R. 969 (Tribunal) — Relied on [Para 5.4]
• Modi and Modi Constructions v. Commissioner — 2021 (45) G.S.T.L. 398 (Tribunal) — Referred [Paras 4, 5.5]
• Quality Builders & Contractor v. Commissioner — Final Order No. 50809/2022 by CESTAT, New Delhi — Relied on [Paras 3.1, 5.5]
• Shri Prakash Wadhwani v. Commissioner — Final Order No. 50617/2020 by CESTAT, New Delhi — Referred [Para 3.1]