2014 (2) TMI 620 - AT - Service Tax

Applications for modification of Stay Order - Residential complex service - agreement to sell Undivided Share in land ( UDS for short) - Held that - we have considered cases of construction activity where counsels made submissions of similar nature that sale of UDS was registered towards the end of construction activity and hence no service tax was payable. In those case also, we called for pre-deposit of almost 50% of the tax dues. Considering such position, we do not find any reason to modify our stay order dt. 29.7.2013 in the operative part of the order. The applicant had entered into an agreement for construction of the flats and they had collected money for construction and they are rendering services to other persons. In view of that, the contention of the learned advocate based on point of registration of UDS is not relevant. - application rejected.

Summary

Issues:
1. Correction of facts recorded in a stay order.
2. Determining the sequence of events in a business model for tax implications.
3. Interpretation of the definition of "residential complex service" under Section 65(91a) of the Finance Act, 1994.

Issue 1: The applicant sought a correction in facts recorded in a stay order, claiming that the recorded facts were prejudicial to their representation before the High Court. The applicant argued that the business model involved simultaneous execution of agreements for the sale of Undivided Shares (UDS) of land and construction activities. The Tribunal, after considering arguments from both sides, corrected the facts to reflect that UDS sale and construction agreements were entered into simultaneously, with UDS registration occurring after the start of construction activities. The Tribunal emphasized the need to determine the existence of a service provider and service recipient relationship in the case.

Issue 2: The Revenue argued that UDS should be considered sold even before registration based on the agreement to sell and initial payment received. The Revenue contended that the registration of UDS should not be the sole criteria for determining the involvement of a service. The Tribunal modified certain sentences in the stay order to clarify the position that the construction activity was done for the prospective buyers of flats. The Tribunal highlighted that the registration of the sale was only for UDS and not for the constructed flats, indicating a service provided to the buyers.

Issue 3: The Tribunal examined the definition of "residential complex service" under Section 65(91a) of the Finance Act, 1994. The Tribunal analyzed the agreements for sale of UDS and construction of flats separately and concluded that the applicant was rendering services to other persons based on the construction agreements. The Tribunal rejected the argument that tax liability should be calculated only after the registration of UDS, emphasizing that the rendering of services to other persons was the determining factor for tax implications.

In conclusion, the Tribunal addressed the correction of facts in the stay order, clarified the sequence of events in the business model for tax purposes, and interpreted the definition of "residential complex service" to determine tax liability based on the rendering of services to other persons as per the agreements for construction of flats.