2011 (4) TMI 1023 - HC - Service Tax

Building developer - Whether the construction activity being performed/undertaken by assessee as a service to Co-operative Housing Society and its members, is a taxable activity or not - there is nothing to indicate that the respondent has been hired as a contractor by the society so as to bring the activities of the respondent within the ambit of taxable services as contemplated under section 65(105)(zzzh) of the Act - In the absence of there being any service provider and service recipient in relation to the transaction in question, the Tribunal was justified in holding that the transaction in this case cannot be considered as taxable

Issues Involved:
1. Taxability of construction activity undertaken by Sujal Developers for Saket III Co-operative Housing Society.
2. Interpretation of the Board's Circular No. 108/2/009-ST dated January 29, 2009, in relation to the term 'developer' and its applicability to Sujal Developers.

Detailed Analysis:

Issue 1: Taxability of Construction Activity

The appellant, Commissioner of Service Tax, Ahmedabad, challenged the Tribunal's order regarding the taxability of construction activities performed by Sujal Developers for Saket III Co-operative Housing Society. The appellant argued that the construction services provided by Sujal Developers to the society and its members constituted a taxable service under the category of "construction of complex" as defined in section 65(105)(zzq) of the Finance Act, 1994. The appellant contended that since the society and its members are separate legal entities from Sujal Developers, the service tax was rightly paid by the respondent.

The respondent, Sujal Developers, countered that they were not engaged as contractors but were developers with rights to develop and sell the residential buildings. They argued that there was no service provider and service recipient relationship, as the development agreement allowed them to develop the land and sell the constructed buildings. The Tribunal found that the society had not hired a contractor for construction but had the developer construct and sell the buildings, thus constituting self-service, which is not taxable.

Issue 2: Interpretation of Board's Circular No. 108/2/009-ST

The appellant claimed that the Tribunal erred in interpreting the Board's Circular dated January 29, 2009, by not distinguishing Sujal Developers from the term 'developer' in the circular. The appellant emphasized that the circular clarified that no tax is leviable where "sale" is involved, but in this case, there was no sale, only service provision to the society and its members.

The respondent referred to the development agreement and Board's circular, asserting that the agreement was in the nature of "agreement to sell," and the construction services provided till the execution of the sale deed were self-service, not attracting service tax. The Tribunal agreed with this interpretation, noting that the respondent was developing the land and selling the buildings to society members, which did not constitute a service provider-service recipient relationship.

Tribunal's Findings:

The Tribunal found that the co-operative societies did not hire contractors but chose to construct complexes on their own. The Tribunal referred to the Board's circulars and clarifications, concluding that in the absence of a contractor hired by the society, the transaction could not be considered taxable. The Tribunal remanded the matter to the original adjudicating authority to examine the aspect of unjust enrichment before granting a refund.

Court's Conclusion:

The court upheld the Tribunal's decision, stating that for a service to be taxable under section 65(105)(zzzh) of the Finance Act, 1994, there must be a service provider and a service receiver. In this case, the respondent-developer used its own finances to develop the land and sell the property to society members, which was considered self-service. The court concluded that the transaction did not fall within the ambit of taxable services, and the Tribunal's order did not give rise to any substantial question of law. The appeal was dismissed.

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