2016 (3) TMI 715 - AT - Service Tax

Demand of Service tax for the period 2004-2005 to 2007-2008 - Construction of complex service - Failure to pay tax liability in respect of 50% of the constructed property assigned to the owners of the land in terms of the Joint Development agreement - Held that - Department s contention that CBEC Circular dated 29/1/2009 not applicable to appellant s case is not accepted. The main point of clarification by the CBEC is on the implication of agreement to sale and provisions of Transfer of Property Act to determine the question of service to another person or service to self. It has been clarified that the execution of sale deed transfers the ownership of their property to the ultimate owner. Hence, any services provided by seller till the execution of such sale deed will be in the nature of self-service with no liability to service tax. Therefore, the distinction sought to be made in the impugned order is not tenable. - Decided in favour of appellant

Summary

Issues:
1. Non-payment of service tax for construction services provided.
2. Interpretation of CBEC circular regarding service tax liability.
3. Applicability of service tax in joint development agreements.
4. Distinction between construction of commercial and residential buildings for service tax purposes.

Analysis:
The case involved an appeal against an order confirming a demand for service tax against the appellant for failing to pay tax liability related to the construction of a complex under a joint venture with landowners. The Department alleged that the appellant did not discharge service tax for 50% of the complex assigned to the landowners. The Commissioner (Appeals) upheld the demand, leading to the appellant's appeal before the tribunal.

The appellant argued that a CBEC circular clarified that until the completion of construction and full payment, any service provided in connection with construction of residential complexes would not attract service tax. The appellant cited various tribunal decisions and High Court rulings in support of their claim. However, the Department reiterated the findings of the lower authorities.

Upon examination, the tribunal found that the service tax demand was based on the appellant's alleged failure to pay tax for the property share assigned to landowners under the joint development agreement. The tribunal disagreed with the Commissioner's distinction between construction of commercial and residential buildings for service tax purposes, emphasizing the CBEC's clarification on the implications of an "agreement to sale" and the Transfer of Property Act.

Referring to a previous tribunal case, the tribunal concluded that an agreement to sell does not create any interest in the property until completion of construction, and any service provided is considered self-service, not subject to service tax. It was noted that in the present case, the transfer of the property share to the landowner occurred only upon completion of construction, indicating no service provider-recipient relationship before such transfer.

Based on this analysis, the tribunal held the impugned order unsustainable and set it aside, allowing the appeal against the service tax demand related to the construction of the complex under the joint venture agreement with landowners.