2018 (9) TMI 259 - AT - Service Tax

Real Estate Agent Services - Non-discharge of Service Tax - Managing projects of M/s. Mckino & M/s. Axa Business - Assignment & transfer income - Assessment & bifurcation fees Khata transfer fees - Forfeiture of amounts received - Held that - On going through the agreement between the appellants as a real estate developers and prospective buyers, it is found that the contract is on a principal to principal basis - the amounts received by the appellants in respect of 3 activities undertaken by them i.e. assignment transfer income , assessment and bifurcation fees, Khata transfer fees and forfeiture amounts find their origin in the agreement with prospect to buyers in which the appellants are developers only and are not workings as real estate agents - the activity undertaken by them is not in the capacity of a real estate agent but undertaken as real estate developers - demand set aside. In the case of Ansal Properties and Infrastructure Ltd. 2017 (9) TMI 1071 - CESTAT NEW DELHI it was held that demand pertaining to consideration received for change of name for flat owners by way of substitution new buyers name with the earlier flat owners is not chargeable to Service Tax. Management of construction of projects - Held that - The appellants have been supervising the construction projects of M/s. Mckino & M/s. Axa Business Services - their role was to supervise the construction and if the contractor fails to meet the expectations of their principals to undertake the construction themselves therefore, it is not a mere advice consultancy or technical assistance in respect of management of real estate - no Service Tax can be demanded from the appellants on this count under the head Real Estate Agent Service - demand set aside. The demands pertaining to the services are set aside along with interest and penalties - appeal allowed - decided in favor of appellant.

Issues Involved:
1. Consultancy in real estate services.
2. Managing projects of M/s. Mckino & M/s. Axa Business.
3. Assignment & transfer income.
4. Assessment & bifurcation fees Khata transfer fees.
5. Forfeiture of amounts received.

Issue-wise Detailed Analysis:

1. Consultancy in Real Estate Services:
The appellants did not contest the levy of Service Tax in respect of consultancy in real estate services. The Tribunal confirmed the demand of Service Tax for this service.

2. Managing Projects of M/s. Mckino & M/s. Axa Business:
The appellants argued that their role in managing construction projects involved supervising the construction and potentially undertaking construction themselves if the contractor failed. This was not merely advice, consultancy, or technical assistance in the management of real estate. The Tribunal agreed, finding that no Service Tax could be demanded under the head 'Real Estate Agent Service' for this activity during the relevant period.

3. Assignment & Transfer Income:
The appellants contended that the assignment and transfer fees originated from agreements with buyers and were not real estate agent services. The Tribunal found that these fees were part of the construction and sale agreements, which were on a principal-to-principal basis. The Tribunal concluded that the appellants were acting as real estate developers, not agents, and thus, no Service Tax was applicable for this activity.

4. Assessment & Bifurcation Fees and Khata Transfer Fees:
The appellants argued that these fees were collected during the construction and sale of apartments and were not real estate services. The Tribunal agreed, noting that these activities were part of the construction and sale agreements. The Tribunal found that the appellants were developers, not real estate agents, and thus, no Service Tax was applicable for these fees.

5. Forfeiture of Amounts Received:
The appellants contended that forfeited amounts were deposits made by purchasers under agreements to sell or construct and had no nexus to any taxable services under 'Real Estate Agent Services.' The Tribunal agreed, finding that these amounts were part of the agreements with buyers and were not related to real estate agent services. Therefore, no Service Tax was applicable for forfeited amounts.

Conclusion:
The Tribunal confirmed the demand of Service Tax only in respect of consultancy in real estate services. The demands pertaining to managing projects, assignment and transfer income, assessment and bifurcation fees, Khata transfer fees, and forfeiture amounts were set aside along with interest and penalties. The Tribunal concluded that the appellants were acting as real estate developers, not agents, and thus, these activities were not subject to Service Tax under 'Real Estate Agent Services.'

Order Pronouncement:
The order was pronounced in Open Court on 05/09/2018.

← Previous Next →