1. - Since common questions of law and facts are involved in these writ applications, they are being decided by this common order.

2. The facts are being noted from D.B. Civil Writ Petition No. 13535/2010 Ashiana Housing Limited & anr. v. Union of India & Ors. The petitioners have questioned the validity of explanation to clause (zzq) and (zzzh) of Section 65(105) and clause (zzzzu) to Section 65 (105) of the Finance Act, 1994 (hereinafter referred to as 'the Act of 1994’) as amended by the Finance Act, 2010 (hereinafter referred to as "the Act of 2010") and prayed to declare that levy of service tax under the said provisions is illegal, arbitrary and ultra vires the Constitution.

3. It is averred in the petition that the petitioners are engaged in the real estate business in India. They are engaged in carrying out construction for themselves and thereafter, sale of building/premises to the purchaser of the immovable property. According to the petitioners, consideration paid to them is purely a consideration for sale of immovable property and not for providing any construction service to the purchaser. Since the petitioners are receiving consideration for sale of immovable property before grant of completion certificate, the petitioners are directly affected by the explanation to Section 65(105) (zzq) and (zzzh) and Section 65(105) (zzzzu) of the Act of 1994 amended by the Act of 2010. The petitioners being the deemed service: provider have to bear the service tax as required by the said provisions. Hence, the present writ petition was filed challenging the explanation to Section 65(105) (zzq) and (zzh) and Section 65(105) (zzzzu) being arbitrary, illegal discriminatory and violative of Article 14 of the Constitution of India. It was contended that builders, who have received the payment of sale of immovable property subsequent to the grant of completion certificate has been exempted from payment of service tax whereas the builders who have received payment for sale of immovable property before the grant of completion certificate has been deemed to be service provider, especially when in both the situation the transaction is of sale of immovable property on which admittedly no service tax is chargeable. The classification based upon the time of receipt of payment from prospective buyer is wholly arbitrary, discriminatory and unreasonable and not based on any intelligible differentia. According to petitioners, the impugned provisions are ultra vires the Article 246 read with entry 49 of List II of Seventh Schedule to the Constitution. The Central Government was not competent to levy the service tax under the impugned provisions which seek to bring sale of immovable property within the purview of taxable services. No tax can be collected without authority of law as per Article 265 of the Constitution of India. The Union of India has no power to levy the service tax on impugned transaction and sale of immovable property. Entry 54 of the State List of Seventh Schedule deals with taxes on sale or purchase of goods and Entry 49 of State List of Seventh Schedule deals with taxes on lands and buildings. Thus, it was not within the power of the Union of India to levy service tax on land and building as it is a State subject. The impugned provisions of Section 65 (105) (zzq), (zzzh) and (zzzzu) are ultra vires the Constitution of India, particularly Articles 245, 246, 265 read with Entry 54 of the State List of Seventh Schedule. No service element is involved in the transaction of sale of immovable property and thus, service tax cannot be levied by impugned provisions as the very nature of tax will become direct in nature and the tax will be confiscatory and coercive on the petitioners and assessees.

4. A reply to the writ petition has been filed by the respondents contending that the provisions of Section 65(105)(zzq), (zzzh) and (zzzzu) cannot be said to be arbitrary, illegal, discriminatory, unconstitutional and violative of A