2017 (9) TMI 1071 - AT - Service Tax

Management consultancy service - real estate agent service - demand of service tax - Held that - On careful consideration of the scope of the agreement, we note that there is no consultancy service with reference to improvement of organizational efficiency of the client - It is clear that transfer of know-how by the respondent to the client does not amount to management or business consultant service, as seen from the terms of agreement in the present case - reliance placed on the decision of the Tribunal in Castrol Ltd. Vs. CCE, Raigad 2007 (3) TMI 140 - CESTAT, MUMBAI , where it was held that said activity can t covered under MCS . Real Estate Agent Service - Held that - There is nothing in the show cause notice or the relied upon documents to show that the respondent acted in a capacity of real estate agent between the earlier owner and the new buyer of the flat. The changes made in the records of the respondent are not causative factors for such sale or purchase - no service tax liability can be confirmed against the respondent under this category. Maintenance or repair service - Held that - Advice or consultancy rendered by the appellant is not covered by maintenance or repair of immovable property. Admittedly the appellants are not involved in any activity of management, maintenance or repair. Maintenance charges attributable to the money collected from the owners of plot/flat/office for maintenance of the said properties - Held that - the entire building which was maintained and managed by the appellant/assessee for a consideration is for the collective benefit of the owners of the individual units in the building. Each owner is collectively and severely got the benefit of said maintenance - the consideration paid by the owners of flat/plot/office is liable to service tax - demand upheld. Time limitation - Held that - the appellant/assessee is a well organized large scale real estate developer. As such, it is not tenable for them to submit that they were not fully aware of the legal implications of various service tax entries applicable to them - there is no bonafide belief in the present case for non-payment of service tax in time - extended period rightly invoked. Appeal dismissed - decided partly in favor of assessee.

Issues Involved:
1. Tax liability under "management consultancy service".
2. Tax liability under "real estate agent service".
3. Tax liability under "maintenance or repair service".
4. Confirmation of demand on maintenance charges.
5. Limitation and penalties.

Issue-wise Detailed Analysis:

1. Tax Liability under "Management Consultancy Service":
The Revenue contended that services provided by the respondent in relation to the transfer of know-how should be classified under "management consultancy service" and thus be subject to service tax. They argued that the respondent’s expertise in real estate projects and the transfer of know-how to clients improved the clients' organizational efficiency, fitting the definition of management consultancy. However, the Original Authority found that the transfer of know-how was in the form of data, information, drawings, and design specifications, without any consultancy on organizational efficiency. The Tribunal agreed with the Original Authority, noting that the respondent did not engage in planning, organizing, staffing, directing, controlling, or coordinating the activities of their clients. Thus, the transfer of know-how did not amount to providing management consultancy services.

2. Tax Liability under "Real Estate Agent Service":
The Revenue argued that charges collected by the respondent for changing the names of flat owners should be taxed under "real estate agent service". The statutory definition includes services related to the sale, purchase, leasing, or renting of real estate. However, the Tribunal found no evidence that the respondent acted as a real estate agent between the old and new flat owners. The changes in records were not causative factors for the sale or purchase of property. The Tribunal cited a precedent where transfer charges for land allotment were not taxed as real estate agent services, emphasizing that the respondent dealt with buyers on a principal-to-principal basis, not as an agent.

3. Tax Liability under "Maintenance or Repair Service":
The Revenue contended that supervision charges collected for advising on repairs and modifications should be taxed under "maintenance or repair service". The Original Authority, however, concluded that advising on maintenance or repair does not fall under the statutory definition of "maintenance or repair service", which involves actual management, maintenance, or repair activities. The Tribunal upheld this view, noting that the respondent did not engage in any direct maintenance or repair activities.

4. Confirmation of Demand on Maintenance Charges:
The Original Authority confirmed service tax liability on maintenance charges collected from flat/plot/office owners for maintaining common areas. The respondent argued that managing the entire building and common areas was a composite activity and should not be taxed separately for each owner. The Tribunal disagreed, stating that each owner benefitted from the maintenance services, making the charges liable for service tax. The Tribunal found no merit in the respondent’s objection.

5. Limitation and Penalties:
The Original Authority found that the respondent failed to demonstrate a bonafide belief for non-payment of service tax. The Tribunal noted that the respondent, being a large-scale real estate developer, should have been aware of the applicable service tax entries. The Tribunal upheld the findings of the Original Authority, confirming the service tax liability and penalties.

Conclusion:
The Tribunal upheld the impugned order, dismissing both the Revenue's appeal and the respondent's cross-objection. The order was pronounced in open court on 23/08/2017.

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