2018 (6) TMI 800 - AT - Service Tax

Construction of residential and commercial complex - Tri-partite Agreement - non-payment of tax on Construction of 45 flats, which were entitled to the Flat Owners, in lieu of their relinquishing the undivided share of land in favour of the appellant - Department took the view that the appellant is required to discharge service tax in respect of the 45 flats allotted to erstwhile owners on the basis of sale price of remaining 30 flats - Held that - There cannot be any tax liability on the appellants for the period prior to 1.7.2010, namely, when the amendments were caused in the relevant provisions relating to the construction of residential complex in the Finance Act, 1994. This is the view as clarified by the CBEC in their Circular No.151/2/2012-ST dt. 10.02.2012 - there cannot be any service tax liability in respect of the construction of flats provided by the appellants to the erstwhile 45 flat owners in lieu of their relinquishing their undivided share of land. Identical issue decided in the case of VASANTHA GREEN PROJECTS VERSUS CCT, RANGAREDDY GST 2018 (5) TMI 889 - CESTAT HYDERABAD , where it was held that the amount attributable to the consideration received by appellant in the form of land rights from the land owner stands included in the value of villas sold to prospective customer which would mean that whatever consideration was received by the appellant in form of developmental right was considered in assessable value. Appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Service tax liability on construction of residential complex for 45 flats.
2. Interpretation of the exclusion clause in the definition of 'Residential Complex Service'.
3. Applicability of service tax on construction services provided by the builder/developer.
4. Comparison of tax liability for flats sold to other customers versus those provided to flat owners.

Analysis:

1. Service Tax Liability on Construction of Residential Complex for 45 Flats:
The case involved the construction of a residential complex by the appellants for 45 flats, where the appellants paid service tax on the amount collected from landowners towards additional area but did not pay tax for the construction of 45 flats provided to the flat owners. The Department contended that service tax was required for these 45 flats based on the sale price of the remaining 30 flats. The Commissioner confirmed a service tax liability of ?76,15,657/- with interest and penalty. The appellants argued that the construction work done for the flat owners was not taxable as it was intended for personal use, and the construction was in lieu of relinquishing land rights.

2. Interpretation of Exclusion Clause in 'Residential Complex Service' Definition:
The appellants argued that the exclusion clause in the definition of 'Residential Complex Service' referred to the construction of a complex by persons for their own residential purposes, which included construction done by members of an association. They emphasized that the construction work was not a taxable service as it was done for personal use, and the consideration was paid in kind by constructing flats for the flat owners.

3. Applicability of Service Tax on Construction Services Provided:
The argument focused on the applicability of service tax on construction services provided by the builder/developer to the landowners and other buyers. The Circulars issued by the CBEC clarified that construction services provided by the builder/developer would not be taxable for the period prior to 1-7-2010. The Circular emphasized that until the completion of construction and full payment, the service provided would be considered 'self-service' and not attract service tax.

4. Comparison of Tax Liability for Flats Sold to Customers vs. Provided to Flat Owners:
The Tribunal found that there was no tax liability on the appellants for the construction of flats provided to the flat owners prior to 1-7-2010, as clarified by the CBEC Circulars. The Tribunal also referenced a previous decision where a similar issue was ruled in favor of the appellants, emphasizing that if appropriate service tax liability was discharged on the value received for the flats sold to customers, the same value could not be made liable to service tax again for flats given to landowners.

In conclusion, the Tribunal set aside the impugned order, ruling in favor of the appellants and allowing the appeal with consequential relief as per the law.