Service Tax on Transfer of Development Rights of Land – Legal Analysis

Service tax legislation has seen a lot many changes from the days it was introduced and has always been evolving to ensure effective revenue collection. A large number of issues tend to be matter of disagreement between the revenue authorities, trade at large and consultants / experts. Obviously most of them go to the judiciary for their insights and judgments thereon. One such matter is the issue of taxability of transfer of development rights of land which may be potential disagreement between the trade and revenue.

Introduction to Real Estate Practice – Development Rights

The Real estate sector of the country is growing at an exponential way and housing is the one of the crucial necessity of every citizen of the country. With the development in the real estate sector the most adopted model remains to be developer – land owner – customer model. There are majorly two reasons for adopting this model:-

a. The developer company itself sometimes would be capable to acquire the complete land but cannot do so due to land ceiling provisions applicable to the state. In such scenarios different group companies buy the land and pool their development rights to a single developer company.

b.  In other case, on the merit that investment reduces drastically for both the developer and land owner and it is mutually beneficial situation.

The Model

 The model of operation in such a scenario is as under:-

a) The land owner shall acquire land on which the development is to be undertaken. The Developer enters into an agreement with land owner.

b) Pursuant to this agreement, land owner transfers his ‘Development Rights’ to the developer.

c) These development rights are generally transferred to the developer permanently, exclusively and on irrevocable basis.

d) The consideration charged by land owner for such transfer of development rights may be in pure monetary terms or may be as a revenue share arising out of the sale proceeds of the project by the developer.

e) The development rights of the land entitle the developer to enter the land, develop the land, obtain license for land conversion / development, sell the units of the projects and enter into flat buyer’s agreement with the buyers.

The Issue

The issue that this article aims to analyze and discuss is the taxability of transfer of development rights by land owner to developer under the service tax laws. Whether such transfer of development rights is liable to service tax?

It is learnt that service tax authorities have conducted search operations against few developers and land owners and demanded service tax for transfer of development rights. They hold a view that transfer of development rights is liable to service tax.

Even DGCEI has booked case on one of the leaders of Real Estate industry in Delhi / NCR on the same issue alleging non-payment of service tax over transfer of development rights. {Source: – Media}

What are Development Rights?

Development right is fundamentally a right to develop the land for agricultural , residential or commercial use. Essentially, land like any other asset is a bundle of several rights that accrues to it. Several rights one may identify with land are development rights, possession right, cultivation right etc.

By transferring the development rights it shall not result into transfer of ownership of the land in toto but only the aspectual right to develop the land.

Taxability prior to 1st July, 2014 {Prior to Negative List Regime}

Prior to negative list regime a service was liable to service tax only if it was covered in the specified set of services on which service tax was applicable. Out of several services related to real estate industry including commercial construction, real estate agent or preferential location services the said activity of transfer of development rights finds nearest taxability contentions in ‘Renting of Immovable Property”. Whether it was taxable under this category or not follows in this discussion.

As per section 65(105)(zzzz),

Any services provided or to be provided to any person, by any other person, by renting of immovable property or any other service in relation to such renting, for use in the course of or, for furtherance of, business or commerce

“Immovable property” includes—

(i) building and part of a building, and the land appurtenant thereto;

(ii) land incidental to the use of such building or part of a building;

(iii) the common or shared areas and facilities relating thereto; and

(iv) in case of a building located in a complex or an industrial estate, all common areas and facilities relating thereto, within such complex or estate, but does not include-

a. vacant land solely used for agriculture, aquaculture, farming, forestry, animal husbandry, mining purposes

b. vacant land, whether or not having facilities clearly incidental to the use of such vacant land;

c. land used for educational, sports, circus, entertainment and parking purposes; and

d. building used solely for residential purposes and buildings used for the purposes of accommodation, including hotels, hostels, boarding houses, holiday accommodation, tents, camping facilities

(v) vacant land, given on lease or license for construction of building or temporary structure at a later stage to be used for furtherance of business or commerce;

Now, to understand the taxability of the transfer of development rights it is imperative for us to discuss that whether irrevocable transfer of development right would tantamount to lease or license of vacant land.

Lease and License

Section 105 of Transfer of Property Act, 1882 defines lease as “A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms” Essentially the periodicity, perpetuity and right to enjoy such property for certain time are the main elements of a lease.

In case of Jaswantsinh Mathurasinh & anor v. Ahmedabad Municipal Corpn & ors (1992) 1 SCC 5 it was held by that “A lease creates a right or an interest in the enjoyment of demised property and a tenant or sub-tenant is entitled to remain in possession thereof until the lease is duly terminated, and eviction takes place in accordance with law.”

A license is defined in Section 52 of Indian Easements Act 1882 as ‘a right to do or continue to do, in or upon the immovable property of the grantor, something which would in the absence of such right be unlawful, such right does not amount to an easement or an interest in the property. {Muskett v. Hill (1839) 5 Bing (HC) 694 }

In Associated Hotels of India v. R N Kapoor {AIR 1959 SC 1262}, it was held that

“The following propositions may, therefore, be taken as well-established: (1) To ascertain whether a document creates a licence or lease, the substance of the document must be preferred to the form ; (2) the real test is the intention of the parties-whether they intended to create a lease or a licence; (3) if the document creates an interest in the property, it is a lease;

….

but, if it only permits another to make use of the property, of which the legal possession continues with the owner, it is a licence; and (4) if under the document a party gets exclusive possession of the property, prima facie, he is considered to be a tenant; but circumstances may be established which negative the intention to create a lease.”

In a catena of judgements including Qudraiullah v. Municipal Board Bareily (1974) 1 SCC 202 ; Rajbir Kaur v. S Chokosiri & Co. AIR 1988 SC 1845 and several others, the following principles to understand the concept of lease and license has been seen as good law :-

“There is no simple litmus test for distinguishing a lease from a license. The character of the transaction turns on the operative intent of the parties. If interest in the immovable property, entitling the transferee to its enjoyment, is created, it is a lease; If permission to use land without the right to exclusive possession is alone granted, the transaction is a license”

In MN Clubwala v. Fida Hussain Saheb AIR 1965 SC 610, it has been held that the theory of exclusive possession is a matter of considerable significance in deciding whether the transaction is a lease or a license.

Whether Transfer of Development rights is lease or license of Vacant Land

Based on above discussion, two conclusions can be carved,

a) Permanent & Irrevocable Transfer of Development Rights is not a transaction of Lease

• Lease gives revocable right to enjoy property to lessee, while in case of transfer of development rights (TDR) the right is transferred permanently and irrevocably.
• Lease gives right to enjoy while TDR give right to develop.
• Lessor regains possession after lease term, while in TDR it is not the case.
• Lease rights do not permit development but mere possession, while TDR permits development.
• Lease involves recurring compensation, while TDR involves fixed and generally single compensation.
  

b) Permanent & Irrevocable Transfer of Development Rights is not a transaction of License

• License cannot create interest in property while TDR creates interest.
• Licensee cannot transfer the product while under TDR the developers can enter in flat buyers agreement with the customers.
• Licensor discretion stands in case of license while in TDR the developer has the discretion to develop and sell the project.
  

Based on above discussion, it can be inferred that this transaction of transfer (sale) of development rights is outside the purview of service tax ambit for the period prior to 1^st July, 2012 and can be inferred as mere sale of right (Development right) in the immovable property.

Taxability of Transfer of Development Rights in Negative List Regime i.e. WEF 1^st July, 2012

The service tax ambit was enhanced significantly with the inception of negative list regime w.e.f 1^st July, 2012. Under this regime all the activities are liable to service tax except those which are outside the ambit of definition of service or are covered in negative list (section 66D) or under mega exemption notification (Not. 25/2012-ST as amended). Hence all other activities not covered above gets taxable resulting in enlarging service tax’s scope drastically.

To understand the taxability, it is imperative to understand whether the activity of transfer of development rights (TDR) would constitute a ‘service’ as per definition laid down in service tax laws.

As per section 65B(44) of Finance Act, 1994

“Service” means any activity carried out by a person for another for consideration, and includes a declared service, but shall not include—

a) an activity which constitutes ‘merely’,––

I. a ‘transfer of ‘title’ in goods or immovable property, by way of sale, gift or in any other manner; or

II. such transfer, delivery or supply of any goods which is deemed to be a sale within the meaning of clause (29A) of Article 366 of the Constitution; or

III. a transaction in money or actionable claim;

b) a provision of service by an employee to the employer in the course of or in relation to his employment;

c) Fees taken in any Court or tribunal established under any law for the time being in force.

To interpret whether the transfer of development rights would tantamount to service or not, one needs to understand the maxim of ‘title in immovable property’. Before that we may go through what the board (CBEC) has clarified in this context and reason why service tax authorities hold a strong view that transfer of development rights is liable to service tax in negative list regime (i.e. WEF 1^st July, 2012)

CBEC – Education Guide (Dated 20.6.2012) – Extracts

2.6 Activity to be taxable should not constitute only a transfer in title of goods or immovable property by way of sale, gift or in any other manner

  ♦  Mere transfer of title in goods or immovable property by way of sale, gift or in any other manner for a consideration does not constitute service.

…

  ♦  Immovable property has not been defined in the Act. Therefore the definition of immovable property in the General Clauses Act, 1897 will be applicable which defines immovable property to include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth.

2.6.1 What is the significance of the phrase ‘transfer of title’?

Transfer of title’ means change in ownership. Mere transfer of custody or possession over goods or immovable property where ownership is not transferred does not amount to transfer of title. For example giving the property on rent or goods for use on hire would not involve a transfer of title.

Why Service Tax Authorities may hold a strong view that transfer of development rights is liable to service tax

Two key interpretations that service tax authorities may have based on above :-

• ‘Merely’ in the definition has to be inferred as ‘only’.
• ‘Transfer of Title’ means ‘Change of Ownership’.

Since the transfer of development rights do not result in transfer of ownership from land owner to developer in absolute sense, thus in department’s view it may be contention that the transfer of development rights is not a transfer of title in immovable property and hence an eligible service liable for service tax.

The Concept of ‘Title in Immovable Property’

In Canbank Financial Services v. Custodian, 2004 (8) SCC 355 = 2004 (7) SC 507, it was held by the apex court that the word ‘Title’ generally used in the context to the property means a right in the property. Title in a property connotes a bundle of rights. Subject to prohibitory or regulatory statute, such rights are capable of being transferred. The ‘Title’ in an immovable property is the means whereby a person’s right to such property in presenti is established and does not include a bare expectancy to get such right in due course of time.

‘Title’ is a broad expression in law, which need not be always understood as akin to ownership. The said expression conveys different forms of a right to a property which can include right to possess such property. In case of Rajendra Kumar v. Poosamal { AIR 1975 Mad. 379} the Hon’ble Madras HC has laid that ‘Title’ means a present right or interest in an immovable property capable of contracting to convey and cannot be understood as something equivalent to the process of making of title.

In Syndicate Bank v. Estate Officer { AIR 2007 SC 3169 }, it was held by Supreme Court that :-

“A jurisprudential title to a property may not be a title of an owner. A title which is subordinate to an owner and which need not be created by reason of a registered deed of conveyance may at times create title. The title which is created in a person may be a limited one, although conferment of full title may be governed upon fulfilment of certain conditions. Whether all such conditions have been fulfilled or not would essentially be a question of fact in each case. “

In Union of India v. Vasavi Co-operative Housing Society { 2002 (5) ALD 532 – AP }

100. The word ‘Title’ includes a right, but is the more general word. ‘Every right is a title though every title is not such a right’ for which an action lies. Blackstone defines it to be “The means whereby the owner of lands has the just possession of his property.“”TITLE” is the means whereby a person’s right to property is established. (See: P.Ramanatha Aiyar’s the Law Lexicon – 1997 Edition).

From above discussion, one may hold a view that the word ‘title’ does not necessarily infer to the ownership but to the right(s) vested in the property as held by the courts in catena of judgements as mentioned above. Further land as discussed previously is a bundle of rights.

A right transferred by way of sale is a Title transferred by way of sale. Further on the theory discussed, it can be a view taken that the activity of permanent and irrevocable sale of development right is a mere transfer of title of immovable property by way of sale and hence shall be outside the purview of service tax even in the negative list regime.

Before parting…

The above discussion clearly explains that the matters due to its sheer technicality may turn out as point of disagreement between the authorities and trade at large. The cost of such tax would be heavy on the trade since transactions are of higher values and in lot of cases might not result in complete Cenvat pass-on. Also, the transaction of transfer of development rights are not of blanket nature and vary on case to case basis which lead to changes in taxability and other surrounding implications.

Inviting readership for constructive feedbacks.

Read Other Articles from CA Ankit Gulgulia (Jain)

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About the Author:

CA Ankit Gulgulia (Jain)

Author is Practicing Chartered Accountant in New Delhi/NCR and specialising in Indirect Taxes, Corporate Laws and Transfer Pricing. He can be reached at [email protected] or at +91-9811653975