2010 (2) TMI 417 - AT - Service Tax

Stay Real Estate Agent Service - The case of the Revenue is that as Applicant acquired the land therefore they had provided the real estate agent s service. Appellant submits that the land is acquired by the Corporation and the land is still with the Corporation therefore it cannot be said that Applicant provided any real estate agent s service. Held that prima facie service of consultancy or technical assistance for acquisition of real estate not provided directly or indirectly. Pre deposit waived. Recovery stayed.

Summary

Issues:
1. Whether the Applicant is liable to pay Service Tax for providing real estate agent's service.
2. Whether the Applicant's acquisition of land constitutes providing real estate agent's service.
3. Whether the Applicant provided consultancy or technical assistance for real estate acquisition.

Analysis:
1. The Applicant sought a waiver of pre-deposit of a substantial Service Tax amount and penalties, contending that as a statutory body under the Orissa Industrial Infrastructure Development Corporation Act, it acquires land for public purposes and leases it to industrial units. The Revenue argued that the Applicant, by acquiring land, provided real estate agent's service. However, the Tribunal found that the Applicant did not render any consultancy or technical assistance related to real estate acquisition to others, and as the land remained with the Corporation, it did not provide real estate agent's service as defined under the Finance Act.

2. The Revenue relied on the adjudicating authority's findings that the Applicant initiated land acquisition processes, conducted evaluations, and transferred land to industrial units, thereby claiming the Applicant provided real estate agent's service. However, the Tribunal clarified that the Applicant's actions were for its own use under the Orissa Industrial Infrastructure Development Act, and as the land ownership remained with the Corporation, the Applicant did not provide any real estate agent's service. The Tribunal noted that the Applicant did not provide advice or consultancy for real estate acquisition to third parties.

3. The Tribunal emphasized that under the Finance Act, a real estate agent includes those engaged in sale, purchase, leasing, or renting of real estate, and a real estate consultant provides advice or consultancy for real estate acquisition. In this case, the Applicant's actions did not involve providing such services to others. Consequently, the Tribunal waived the pre-deposit of Service Tax and penalties, staying the recovery during the appeal's pendency. The Tribunal's decision was based on the understanding that the Applicant did not provide consultancy or technical assistance for real estate acquisition, as the land ownership remained with the Corporation.

This detailed analysis of the judgment from the Appellate Tribunal CESTAT, Kolkata highlights the key issues addressed regarding the liability of the Applicant for Service Tax related to real estate agent's service and the Tribunal's rationale for granting the waiver and stay of recovery based on the specific circumstances of the case.