2013 (8) TMI 678 - AT - Service Tax

Construction of Commercial Complex and Residential Complex - The assesse was engaged in construction activity both of commercial complex and residential complex - Revenue revealed that the applicant did not pay appropriate service tax on three projects executed by them - Held that - Construction of industrial or commercial complex and construction of residential complex were made taxable under entries 65(105)(zzq) and 65(105)(zzzh) even prior to 1.6.2007. The new entry introduced on 1.6.2007 only brings in a new method of payment of service tax liability for these services - The new entry used the same expressions as were used in the previous entries - LCS City Makers Pvt. Ltd. Versus Commissioner of Service Tax, Chennai 2012 (6) TMI 363 - CESTAT, CHENNAI The previous entries also provided for appropriate abatement for value of goods and material involved in providing such services - The question of valuation of property handed over to the land owner was also dealt with in the said order and it was decided that value of comparable property constructed for independent buyers can be adopted as a basis for service rendered to the land owner. It was very clear that the construction activity was undertaken on the land already registered in the name of the client and therefore service was being provided by the applicant to such clients - the clarification issued by CBEC was applicable only in cases where the constructed flats or shops were being sold and were registered for sale - For services rendered to the land owners also it was not a case of uncertain profit to be shared by the two but a case of an agreement to do the service of construction of complex for definite consideration in the form of UDS transferred by the land owner to the applicant or sold as directed by the applicant forty lakhs were ordered to be submitted as pre-deposit upon such submission rest ot the duty to be waived conditional stay granted.

Summary

Issues:
1. Service tax demand on construction activity.
2. Interpretation of joint development agreements.
3. Applicability of service tax on contracts involving property transfer.
4. Valuation of service rendered to land owners.
5. Comparison with CBEC circular.
6. Applicability of service tax on construction for land owners.
7. Tribunal's previous decision on similar cases.
8. Taxability of construction of commercial and residential complexes.
9. Impact of new entry on service tax liability.
10. Splitting of composite contracts under Article 366(29A).

Issue 1: Service tax demand on construction activity
The appellant, engaged in construction, faced a service tax demand for projects executed between 2004-2009. The demand was based on bank receipts, contested by the appellant due to inclusion of fixed deposit amounts. The appellant argued that as they did construction for their benefit under joint agreements, no service tax was applicable.

Issue 2: Interpretation of joint development agreements
The appellant contended that joint development agreements with landowners did not involve service provision as they did construction for self-benefit. They relied on a Tribunal decision and CBEC circular to support their stance that no service was rendered.

Issue 3: Applicability of service tax on property transfer contracts
The appellant argued that contracts involving property transfer were akin to works contracts and subject to service tax only post-2007. They highlighted the introduction of a new service tax entry and challenged the valuation method used by the Department.

Issue 4: Valuation of service to land owners
Disputes arose over valuing services to land owners, with the appellant claiming the Department's method was unsustainable. The Department defended the valuation based on property sales to independent buyers and cited precedents to support their stance.

Issue 5: Comparison with CBEC circular
The appellant referenced a CBEC circular on revenue sharing contracts to support their argument against service tax. They emphasized the lack of service in their joint ventures with landowners.

Issue 6: Applicability of service tax on construction for land owners
Both parties debated whether service tax applied to construction for landowners, with the Department asserting that service was provided to clients who owned the land where construction occurred.

Issue 7: Tribunal's previous decision
The Department cited a Tribunal decision to justify levying service tax on construction activities for landowners. They argued that the value of comparable properties could be used for valuation.

Issue 8: Taxability of commercial and residential complex construction
The Department maintained that construction of commercial and residential complexes was taxable pre-2007, with the new entry introducing a different tax payment method but not altering the taxability of the services.

Issue 9: Impact of new entry on service tax liability
The Department clarified that the new entry post-2007 did not change the taxability of construction activities but only altered the payment method, with abatements for material costs still applicable.

Issue 10: Splitting of composite contracts
The judgment discussed the splitting of composite contracts and rejected the argument that certain entries were non-existent, emphasizing the distinction between service provision and sale of goods in construction activities.

This detailed analysis covers the various issues addressed in the judgment related to service tax demands on construction activities and the interpretation of relevant legal provisions and precedents.