Service Tax on Apartments

JAGADEESH GOVIND (Querist) 14 March 2009 This query is : Resolved
Dear Sir,

My query is related to Circular No.108/02/2009 dated 29/01/2009 by ST Department.

I had entered into two agreements with a Builder for sale of undivided share in the land and a constrction agreement for the construction of Apartment and I am paying consideration in monthly instalments.No sale deed has been executed in favour of me.I had already paid 40% of the amount which includes Service Tax.

My specific doubt is:-

Whether I have to continue to pay Ser.Tax as per the second agreement for the value of apartment as the second agreement with the Company is a construction agreement and the Circular didn't mention anything about construction agreement for residential units.

Kindly advise me.

Regards,

JAGADEESH

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A V Vishal (Expert) 14 March 2009
I opine that para 3 of the service tax circular is clear about your query:

3. The matter has been examined by the Board. Generally, the initial agreement between the promoters / builders / developers and the ultimate owner is in the nature of ‘agreement to sell’. Such a case, as per the provisions of the Transfer of Property Act, does not by itself create any interest in or charge on such property. The property remains under the ownership of the seller (in the instant case, the promoters/builders/developers). It is only after the completion of the construction and full payment of the agreed sum that a sale deed is executed and only then the ownership of the property gets transferred to the ultimate owner. Therefore, any service provided by such seller in connection with the construction of residential complex till the execution of such sale deed would be in the nature of ‘self-service’ and consequently would not attract service tax.