2012 (7) TMI 319 - AT - Service Tax

Construction services - taxability - Construction activities undertaken on own land for residential complexes, which are further sold to the prospective buyers - Held that - In view of decision in case of Magus Construction P.Ltd (2008 (5) TMI 18 (HC)), wherein it has been held that when a builder, promoter or developer undertakes construction activity for its own self, then in such cases, in the absence of relationship of service provider and service recipient , the question of providing taxable service to any person by any other person does not arise at all - Decided in favor of assessee.

Summary

Issues:
Interpretation of service tax on construction activities for residential plots sold by developers.

Analysis:
The judgment by the Appellate Tribunal CESTAT, New Delhi involved the interpretation of service tax liability on developers who undertake construction activities on their own land for residential plots that are later sold to buyers. The Revenue filed an appeal against the order passed by the Commissioner (Appeals). The Tribunal noted that the respondents are developers and dealers engaged in construction activities on their own land for residential complexes, which are subsequently sold to prospective buyers. The Tribunal referred to a judgment by the Hon'ble High Court of Guwahati in the case of Magus Construction P. Ltd., which emphasized that when a builder undertakes construction for its own self, without a relationship of service provider and recipient, no taxable service is provided. The Tribunal found no dispute that the construction activities in the present case were carried out by the respondents on their own land for residential complexes sold to buyers, aligning with the legal principle established by the Guwahati High Court. Consequently, the Tribunal upheld the views of the Commissioner (Appeals) and rejected the Revenue's appeal.

This judgment clarifies the application of service tax laws to construction activities undertaken by developers for residential plots sold to buyers. It underscores the principle that when developers construct on their own land for self-sale without a service provider-recipient relationship, no taxable service is provided, as established by the Guwahati High Court's precedent. The decision provides guidance on the tax treatment of such transactions, emphasizing the importance of the nature of the construction activities and the absence of a service provision element in determining service tax liability. Developers engaging in similar activities can rely on this judgment to understand their tax obligations and defend against challenges from tax authorities regarding service tax liability on self-construction projects for residential sales.