CA Mukund Abhyankar

Introduction:The issue of the imposition of service tax on construction and sale of residential property has long been a matter of concern for the real estate and construction industry as well as for buyers of such residential property. It has gained much prominence after Budget 2010 because of significant amendment made therein towards taxability of sale of flats under service tax.

A ‘deemed service’ provision has been introduced in case of construction service w.e.f. 1-7-2010. Any industrial or commercial construction or construction of residential complex will be subject to tax if such complex or part thereof is sold prior to obtaining ‘completion certificate’. Consequently, installment purchases of immovable property will become chargeable to the service tax.

Notification no. 24/2010 dated 22 June 2010 has specified the effective date of operation of certain provisions of the Finance Act 2010, which include subject amendment, to be  1 July 2010.

Since the subject amendment is made by way of an ‘Explanation’, added to the Definition of service & since this Explanation is not merely for explaining or clarifying the scope but for expanding the scope of taxable service, it can be safely interpreted that this amendment can not have retrospective effect prior to 1-7-2010.

Following players in real estate sector will get affected by the Amendment.

A pure Developer/Builder, who might have outsourced or contracted out the construction activities to a Contractor, in the case of a civil works contract.

A Developer/Builder cum Contractor, who undertakes the construction himself and consequently doubles as a Contractor.

It needs to be noted however that a  contractor engaged by the builder for the purpose of construction of commercial or residential complex is anyway liable to pay the service tax under the relevant taxable category. Dispute was only in respect of the liability of the builder to pay the service tax on  sale of a flats  during construction to the prospective buyer.  Recent amendment brings into service tax net,  transactions of sale effected by builders and developers.

Pre-budget 2010 provisions in respect of construction service

Service tax provisions relating to construction  cover three types of services –

i.      Commercial or industrial construction which is taxable w.e.f. 10-9-2004
ii.      Construction of complex (residential complex of more than 12 residential units) which is taxable w.e.f. 16-6-2005.
iii.      If sales tax/VAT/works contract tax is payable on these construction activities, related services get covered under ‘works contract service’ w.e.f. 1-6-2007 and not under first two categories of services.

As far as sale of flats by builders is concerned,  it was more or less settled, on basis of Court decisions and CBE&C circulars, that a builder entering into contract for sale of flat or industrial unit (gala) or shop or a developer entering into contract for construction of an individual flat for personal residential use of client are not liable to pay service tax.

As a result where agreements are made with the prospective buyers, builders were mostly out of service tax net because in such cases it was considered that no service is rendered.

Changes made in Budget 2010

In the Finance Act, 2010, an Explanation has been added w.e.f. 1-7-2010, to definition of commercial or industrial construction and construction of residential complex, as follows –

Explanation.— For the purposes of this sub-clause, construction of a complex which is intended for sale, wholly or partly, by a builder or any person authorized by the builder before, during or after construction (except in cases for which no sum is received from or on behalf of the prospective buyer by the builder or a person authorized by the builder before the grant of completion certificate by the authority competent to issue such certificate under any law for the time being in force) shall be deemed to be service provided by the builder to the buyer.

Similar Explanation is added In case of commercial or industrial construction service, where in place of word complex, the words used are ‘construction of a new building’.

As a result of this Explanation, an activity which is not ‘service’ as per Court decisions and CBEC’s own earlier circulars will now be a ‘deemed service’ for purpose of levy of service tax, under above two categories of services.

Effect of the changed Provisions

It is important to note that extension of scope in the definition of taxable service has been made only in respect of commercial or industrial construction and construction of residential complex service, leaving works contract service un affected by the change.

For the two services covered, service tax will now be payable in cases of sales of flats/shops/galas, unless such sales are made & entire consideration is received after Completion Certificate is obtained for the property sold.

Time for obtaining completion certificate thus becomes a key factor in determining taxability of sales of flats under service tax.

Requirement about Completion Certificate is however somewhat relaxed under the Service Tax (Removal of Difficulty) Order, 2010, made effective from 1.7.2010, whereby it is provided that such Certificate can be obtained either from

  1. Any Government Authority including Local Authority
  2. An Architect registered with the Council of Architecture
  3. Chartered Engineer
  4. Licensed surveyor of the respective local authority

Thus even after the amendment, to remain out of service tax net, a builder need not wait for sale of flats till Completion Certificate is obtained from Local Authorities but instead can obtain such certificate from an Architect or Chartered Engineer and can still avoid charge of service tax.

In all other cases, where such completion certificate is not obtained before sale of flats, the builder will be liable to pay the service tax. In most of the cases, builder constructs building by using funds from prospective buyers, paid by them on the basis of Bookings made for major part of such building before its completion. Thus except for few flats reserved for sale at higher price on ready possession basis, for most of the flats sold, service tax will become applicable.

Exclusion of Works contract service from the Amendment

As discussed above, even after the amendment, what is deemed to be a service is only construction of commercial buildings or residential complexes. This is because Amendment inserting Explanation is not made   in the definition of works contract service, but only in other two construction related services.

The amendment therefore does not apply if the contract is covered under works contract service i.e. where Vat/Sales tax is payable on the contract.

Thus if a particular construction activity by a builder is covered under VAT provisions, service tax will not be payable on such construction even after the amendment.  Pre Budget legal position about non applicability of service tax in case of sale of flats will therefore still hold good even after the amendment in case of works contracts for construction.

Exclusion when construction service is provided for personal use of buyer.

Residential complex for service tax purposes does not include a complex which is constructed by a person directly engaging any other person for designing/planning/construction and is intended for personal use as residence by such person. The definition also explains that personal use includes promoting use of such property as residence by another person on rent or even without consideration.

In this connection, National Building Construction Corporation Limited (NBCC) requested the CBEC for a clarification on the applicability of service tax on construction of residential houses for Central Government employees.

In this case Ministry of Urban Development (GOl) has directly engaged the NBCC for constructing residential complex for central government officers. Further, the residential complexes so built are intended for the personal use of the GOI which includes promoting the use of complex as residence by other persons (i.e. the Government officers or the Ministers).

As such the GOl is the service receiver and NBCC is providing services directly to the GOl for its personal use. Therefore, as for the instant arrangement between Ministry of Urban Development and NBCC is concerned, Board has clarified vide F.No.332/16/2010-TRU Dated: 24, May 2010 (after the Budget 21010 Amendment) that the service tax is not leviable.

In the above clarification, if NBCC and Government are replaced by builder and individual buyer, it would mean that if an individual buyer is buying the property for his personal use from builder, then the transaction of sale is not covered under Service Tax. Clear clarification from CBEC is required on this interpretation, because the clarification referred to above has not been placed by CBEC in public domain.

Transitory provisions in case of bookings made/agreements executed prior to 1.7.2010

Date of booking is not relevant.

Date of provision of service is relevant as provision of service is the taxable event. Hence, if construction service is provided after 1-7-2010, service tax will be payable.

Transitory provisions in case of constructions started prior to 1.7.2010

If the construction is partly complete on 1-7-2010, service tax liability shall be ascertained as under.

Principally, provision of service is the ‘taxable event’, i.e. services provided after tax is imposed will be taxable. Thus, service tax will apply in respect of services provided or to be provided on or after 1-7-2010.

Receipt of payment or advance is not relevant for determining tax liability. Thus, a builder/developer is not liable to pay service tax in respect of services provided unto 1-7-2010. Such bifurcation is possible only if the builder/developer keeps proper accounts and records.

Running bills can be issued in respect of services provided up to 1-7-2010, backed by a Certificate from Architect/Chartered Engineer regarding stage of completion of construction covered by such bills raised.

Transitory provisions in case of advance payments made by the customer prior to 1.7.2010

A specific exemption from service tax has been provided for advances received prior to 1.7.2010 vide Notification No. 36/2010 dt. 28.6.2010. As per Notification service tax is not payable on the amount of advance payment received before the 1.7.2010, for   taxable services to be provided, on or after 1.7.2010.

Thus exception has been made for the advances received from the customers before 1.7.2010, even though construction service related to such advances is to be provided after the service has become taxable.

It should be noted however that this exemption is limited to amounts received as advance before 1.7.2010. For all subsequent advances liability will arise towards service tax as per normal provisions.

Service tax is payable on receipt basis and hence as one gets payment for construction service from customer, one has to pay service tax on that amount. If service tax is not shown separately in bill or amount received, the amount received should be taken as inclusive of service tax and then back calculations may be made.

Rate of service tax

Service tax is payable on gross value of taxable services @ 10.3% (Service tax 10%, plus education cess of 2% plus SAH education cess of 1%).

Basic exemption for service tax

The exemption is Rs 10 Lakhs in first year of taxable service counting from 1-7-2010. If turnover in 2010-11 exceeds Rs 10 Lakhs, then there is no exemption and tax is payable on all services from 1st April 2011 onwards.

Valuation of service & Calculation of Service Tax Liability for a Builder/Developer

Principally, service tax is payable on value of taxable services.  Thus, if a service provider has proper costing records, it is permissible to deduct value of material and land (or calculate value of service on cost plus profit basis) and pay service tax on value of service @ 10.30%.

Developers and Builders have following alternative methods available under the service tax law for payment of service tax liability.

If the service is covered under service of construction of commercial buildings or residential complexes, builder can opt for Abatement Scheme applicable to these services, under which service tax is to be paid on 25%/33% of the gross value received, in terms of Notification 1/2006.  Alternatively, they can opt to pay service tax under Notification No. 12/2003-ST dated 20-06-2003, as per which, the service provider is exempted from paying service tax on the value of goods sold/transferred. The benefit of this Notification is very much available to Developers/Builders/Works Contractors.

With effect from 1.7.2010, any person providing taxable service of commercial or industrial construction or construction of residential complex (except completion and finishing services like glazing, plastering, painting, tiling, wood and metal joinery and carpentry, swimming pools, acoustic applications etc.) can opt to pay service tax as follows

(a) on 33% of gross amount charged if the gross amount does not include value of land

(b) on 25% of gross amount charged if the gross amount includes value of land (Till 1-7-2010, the 25% scheme was not available. Only 33% scheme was available).

The ‘gross amount’ should include value of goods and materials supplied or provided or used. Thus, if the customer provides some material, its value will have to be added for purpose of payment of service tax.

Conditions for this concession are

(a) No Cenvat of duty/service tax paid on inputs, input services and capital goods and

(b) No benefit of Notification No. 12/2003-ST dated 20-6-2003

If a project is covered under Works Contract service, (where VAT is paid)  the Realty players can opt to pay service tax either under Notification No. 12/2003-ST dated 20-06-2003, or under the Composition Scheme, applicable to works contractors.

Though the Department has been taking a view that the benefit of Notification 12/2003-ST dated 20-06-2003 cannot be extended to Developers and Builders, the Bangalore CESTAT, in the case of Sobha Developers Ltd v. CCE & ST (2009-TIOL-1188-CESTAT-BANG) has categorically held that the Developer is entitled to the benefit of Notification No. 12/2003. The service provider can have benefit either under Notification 12/2003-ST or 1/2006-ST and not both.

Important aspects for choice between the Alternatives available to Builder for Payment of Service Tax

Comparative features of different alternatives are as under.

Issue Abatement Scheme-Notn. 1/2006 Notification No. 12/2003 Works Contract-Composition Scheme
Criteria for Applicability/Selection Construction service Construction Service or Works Contract Service Works Contract Service
Inclusion of Land Value in the valuation for the purposes of service tax Yes if Abatement is of 75 %

No if Abatement is of 67 %NoNoTaxable amount on which ST leviable25%, /33 % of Gross ValueGross Value Less

value of goods  & Land used in the Provision of Service40% of Gross ValueEffective rate of service tax2.575%, from date of notification10.30 % on the Net Value attributable to service4.12%Availability of Cenvat credit  on service tax paid on input service?NoYesYesAvailability of Cenvat credit   on excise/CVD paid on capital goods?NoYesYesCommunication about selection of option to the DepartmentNoNoYesWhether service tax is payable on Free Issue Material ValueNot clearNoYes, in respect of contracts the execution of which has already started on or after 1-7-2009

Options of  Abatement/Composition or Notification 12/2003 are available in respect of each of the contracts.  It can be said that there are as many works contracts as there are flats, in a housing project.

As for choice between the alternatives, Developers who have contracted out the construction activity can find Notification No. 12/2003 or the Composition Scheme for Works Contractors more beneficial looking at significant benefit arising out of availment of CENVAT credit.

The 25% scheme is simple but the liability of service tax will be high, particularly at places where land costs are very high. Further Cenvat credit of service tax paid to contractor/sub-contractor is not available.

Different options for different contracts can be adopted depending upon the amount of tax liability under each option.

Each contract can be treated as separate contract and valued differently.

Service tax liability on consideration received from Landlord

Where land is received from the land owner by the builder in consideration of some flats/galas to be given later in lieu of the land, service tax is payable on the value of flats offered to the landlord.

As soon as builder gets possession of land from land owner, it is ‘advance received’ and service tax will become payable next month.

In such case, value of service will have to be found out on basis of value of service of identical or similar flat/shop or on basis of cost of construction plus reasonable profit.

Provisions with respect to Cenvat Credit

Cenvat credit on construction activities of one project can be adjusted towards output service tax on sale of another project, provided both the projects are not covered under composition option (25%/ 33%).

As per rule 6 of Cenvat Credit Rules, Cenvat credit is not available if output service is exempt from service tax. Subject to this restriction, Cenvat credit among various projects is indeed inter-changeable, particularly if one opts for centralized registration.

Credit of service tax paid on various input services like telephone, courier, mobile, bank charges, audit, security, catering etc can be utilized against service tax payable on construction services. However if certain projects are covered under composition option, pro rata credit will get disallowed as per provisions of rule 6 of Cenvat Credit Rules

Refund of Service Tax on Booking Cancellation

If Service tax has been charged to customer on the basis of booking and deposited with department & later on booking is canceled by the customer, refund of service tax paid earlier can be made to him.

Amount of service tax so refunded can be adjusted against the subsequent payments of service tax. As per rule 6(3) of Service Tax Rules, if excess tax is paid, in respect of service which is not provided either wholly or partially for any reason, the excess service tax paid can be adjusted against service tax payable for subsequent period, if the value of services and tax thereon is refunded to the person from whom it was received.

Registration

A builder can either take separate service tax registration for each project or have centralized registration after studying pros and cons. If proper records etc. are kept, centralized registration will be preferable.  It may be advisable to register each project separately in following cases – (a) If some services are exempt and some taxable or (b) valuation basis for each project is expected to be different,.

Tax payable only by a Builder

If a customer who has purchased a flat/commercial unit/industrial gala/shop from builder/developer, sells it before Completion Certificate, such sale is not laible under service tax.

The words used in the ‘Explanation’ are ‘by the builder or a person authorized by the builder’. A customer is not a person authorized by builder to enter into contract for construction. Hence, a customer cannot fall within that definition.

Even otherwise, service tax is payable on value of taxable service which has already been paid by builder/developer. Even if the customer sales the flat or unit or shop at higher price, it does not mean that cost of construction has increased.

Preferential location and development of complex’ service

As per section 65(105) (zzzzu) of Finance Act, 1994, any service provided or to be provided, to a buyer, by a builder of a residential complex, or a commercial complex, or any other person authorized by such builder, for providing preferential location or development of such complex but does not include services covered under sub-clauses (zzg), (zzq), (zzzh) and in relation to parking place, is a ‘taxable service’. Explanation. — For the purposes of this sub-clause, ‘‘preferential location’’ means any location having extra advantage which attracts extra payment over and above the basic sale price.

CBE&C, has clarified as follows – (Annexure- A to JS (TRU-II) D.O. letter F. No.334/1/2010-TRU dated 26-2-2010)

It has been reported that in addition to these activities, the builders of residential or commercial complexes provide other facilities and charge separately for them and these charges do not form part of the taxable value for charging tax on construction. These facilities include,- (a) prime/preferential location charges for allotting a flat/commercial space according to the choice of the buyer (i.e. Direction- sea facing, park facing, corner flat; Floor- first floor, top floor, Vastu- having the bed room in a particular direction; Number- lucky numbers); (b) internal or external development charges which are collected for developing/maintaining parks, laying of sewerage and water pipelines, providing access roads and common lighting etc; (c) fire-fighting installation charges; and (d) power back up charges etc.

Since these charges are in the nature of service provided by the builder to the buyer of the property over and above the construction service, such charges are being brought under the new service. Charges for providing parking space have been specifically excluded from the scope of this service. Development charges, to the extent they are paid to State Government or local bodies, will be would be excluded from the taxable value levy. Further, any service provided by Resident Welfare Associations or Cooperative Group Housing Societies consisting of residents/owners as their members would not be taxable under this service.

Immediate Steps to be taken by a builder/developer

Apply for registration within 30 days.

Prepare and submit running Bills till cut off date i.e. 1-7-2010, backed by Architect Certificate for the construction completed up to 1.7.2010

Make full disclosure about construction value not offered to service tax so as to avoid penalty for suppression of facts.

(Author Details – M. B. Abhyankar,e-mail:- mbabhyankar@gmail.com, Phone no.-020-24224721. Author is a Chartered Accountant in Practice from Pune, Maharashtra))

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124 responses to “Service Tax Provisions for Builders & Developers”

  1. kumar sonu says:

    i was purchase a flat in 2014 and paid advance against flat 100000 balance payment has to be made after i july 2017 will i have to pay gst 12% on balance payment

  2. shabbar says:

    Thanks. I would like to avail consultancy on VAT and Service tax issue. Please advise the charges payable.

  3. Murari Limaye1 says:

    According to me in the case of construction industry a output product is flat/shop.if the mfg.activity i.e.conversion of raw material to finished product this product should be covered under excise tariff and not in service tax law.whether this logic is correct or not.pl confirm

  4. Kailash Bhatt says:

    Hi,

    I would require your expert advise on the following:

    In under construction building Purchased Immovable Shop from Developer Vide Allotment Letter 18.12.2007 with below payment details paid in full
    a) Rs.15.50 Lacs on 18.12.2007
    b) Rs.80K on 04.07.2008

    However Agreement registered with Developer was on 28.03.2013 and Occupancy Certificate / Completion Certificate was received by Developer on 17.10.2012.

    Am I now liable to pay to Developer Servicate Tax @ 3.09% and Vat @ 1%.

    Shall appreciate your reply with expert advise.

    Thanks & Regards.
    Kailash Bhatt

  5. sati says:

    sir
    i am worked in rajahamsa builders he construction of residential complex .i have Small doubt. sales tax department given notice for audit he ask each and every bill of purchase but we opted composition scheme as per act why should i submitted bills please explained with audit rules

  6. j.madhu says:

    Dear Sir,

    I have booked the apartment in june 2013 and paid 30% as advance amount. the builder promised that he will give the flat with in 20 months. Howvwe still he is unable to take BMRDA approval for vostruction.

    Now, further he is asking me to pay 5.5% as Service Tax on the booking amount paid.Since he has paid this amount to Govt and recocering from us.

    As per law is it necessary to pay the service tax

  7. Kshana Mukherjee says:

    I have paid Rs.84,000/- to the builder as service tax @ 3.5% of the property value which is a ready-to-shift flat. should I get the credit of the service tax payment form my Income Tax Liability ?
    I am a salaried tax -payer.

  8. ADITYA G says:

    Hi Nitin sir, I purchase a new flat in july 200 ready possession and sale deed/registration was done in July 2009 . There is no mention of VAT or ST in the agreements / sale deeds. completion certificate given by municipal corporation in dt. 21/03/2011 And the builder has asking for service tax now. Is this okay? What can i do now pls help me

  9. Deepa says:

    I have purchased under construction flat in Mulund, Mumbai. The flat cost is Rs 1.45 crore and the carpet area of the flat is 1215 sq ft.

    I have made part payment in Oct 2012 and was charged Service Tax @ 3.09%. From March 2013, I was advised the Service Tax has increased to 3.708%. Please advise if this is correct.

    Additionally the builder has charged me Service Tax @ 12.36% for the following payments made by us towards charges / deposits which is normally due on completion. Please advise if this is correct. I understand service tax cannot be collected on maintenance charges. Appreciate your guidance.

    CLUBHOUSE MEMBERSHIP FEES Rs 370000
    SOCIETY FORMATION CHARGES Rs 2500
    MAINTENANCE OUTGOING CHARGES (18 MONTHS DEPOSIT) Rs 166500
    INFRASTRUCTURE CHARGES Rs 370000

  10. Jayant Harde says:

    I want to know:
    We had a land owned by society, a plot in our name,but not registered in our name, no of land disputes which our society could not solve.
    Another builders offer: leave your rights in his favor & get 2 ready flats at different location.
    If I pay registration charges for a ready to live flat, does this transaction requires me to pay service tax & OR vat tax.
    Pl reply.
    I am at Nagpur

  11. Shiv Karwa says:

    Hi,

    I had booked flat in Mira road- Thane (Mumbai) in 2012. I got possession in June 2015 of this flat, on final amount payable builder have imposed 4.05 % service tax on Final instalment of payment apart from this builder have imposed 14% service tax on Development charges and 24 months advance maintenance charges which was earlier zero for others who have taken possession in March 2015.

    builder said that this change is due to change in service tax norms, I have gone through service tax 2015 document but couldn’t found anything direct related to this

    please advised that which section applies for service tax on Development and advance maintenance charges.

    Thanks
    Shiv Karwa

  12. SAMEER says:

    respected sir,

    i m buying a flat in indirapuram ghaziabad worth 47lacs whose construction is almost complete…initially i was told that i have to pay 7% stamp duty as registration amt. but now property dealer is asking for another 3.5% service tax & says that only after paying this amt registry is possible….my flat is in three storey structure having three flats(one on each floor)…pls guide

  13. litesh shah says:

    i have booked my flat in month of feb- 2015, from there to till now 18-6-2015 OC not came, at time of booking builder told you do not have to required to pay service tax and vat as i(builder) have cenvat credit and he will use that at time of sale of flat, since booking it almost 3 months and now he was saying that i will not use cenvat credit as new format of cenvat credit not yet came and etc, and was saying that if you wanted to register the flat then give cheque for service tax & vat then he will come for registration so after that we have decided to do registration and decided to bear service tax also, but registration is done now & now i wanted to fight against him so how do i find out that service tax & vat cheque collected from me by builder has paid the same or how can i know that he had use cenvat credit and not paid the same as the amount received from me ? please guide me what should i do further – as knowing in future he may ask for 2 year ka maintenance exp in advance ?

  14. shridhar says:

    is it karanataka special development plan attract service Tax

  15. dhanvar tayade says:

    I have purchased a under construction duplex in Bhopal ,MP whose registry cost is 27.0 L ,as per builder I am liable to pay another 6% VAT & ST.to pay to government since from 1st april 2015 rules. my registry was done in Aug 2014 & now building is completed.Kindly let me know whether i am liable to pay or not to builder.

  16. SATISH says:

    SIR,

    I HAD PURCHASE A FLAT FROM A BUILDER ON 23 JAN 2013 & PAID SERVICE TAX RS.12665 ON 12.6.14, NOW I WISH TO CANCEL THIS DEAL, IN THIS CONNECTION, BUILDER AGREE TO PAY ALL THE AMOUNT AFTER DEDUCTION CANCELLATION CHARGES RS 5000.

    BUT REFUSE TO RETURN SERVICE TAX RS 12665. HOW CAN I TAKE RETURN THIS AMOUNT FROM BUILDER ?

  17. vijay says:

    i have a small query

    my client is service provider he is involved in the construction services

    Recently he constructed some flats and as a consideration he received some of the flats what he originally constructed

    so now the service provider is required to pay the service tax? if yes, on what amount he is required to pay the service tax

    Kindly mention the rule or section which resolves the issue

  18. harmeet pal says:

    Dear sir

    I have recently purchased a builder floor house in API ansal sushant lok-1, it has been transferred from ansal to first buyer and then to me as second buyer ,

    now i found that they dont have a completion certificate of the same, and charging us for maintenance. water and sewage ,

    now i came to knoe that there is heavy seepage in floor by which residents living under my floor are suffering badly due leakages at heights,

    as i am living at second floor so i m least effected,

    how can i involve the builder to repair this problem

    regards

    Harry
    09910085423

  19. Shilpa says:

    Dear Sir,

    I have sold some land in Goa, can I invest this amount in an industrial gala in Pune and get a Tax rebate?

    Additional what is the time limit after the Sale deed that I need to make this investment?
    Your urgent revert will be appreciated.
    Thanks and Regards, Shilpa

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