Circular No. 151 /2 /2012-ST

Circular No.
151 /2 /2012-ST
F.No.332/13 /2011-TRU
Government of India
Ministry of Finance
Department of Revenue
Central Board of Excise & Customs
(Tax Research Unit)
New Delhi, 10th February, 2012
To
Chief Commissioner of Customs and Central Excise (All)
Chief Commissioner of Central Excise & Service Tax (All)
Director General of Service Tax
Director General of Central Excise Intelligence
Director General of Audit
Commissioner of Customs and Central Excise (All)
Commissioner of Central Excise and Service Tax (All)
Commissioner of Service Tax (All)
Madam/Sir,
Subject: Service tax on construction services regarding.
Many issues have been referred by the field formations, in the recent past,
seeking clarification regarding the levy and collection of service tax on construction
services [clauses (zzq),(zzzh) of section 65(105) of the Finance Act, 1994], in the light of
varying business models. Across the country, divergent business models and practices
are being followed in the construction sector. Some of these business models and
practices could be region specific.
2.
From the issues referred by the field formations, important ones have been
identified model wise, examined and clarified as follows:
2.1. Tripartite Business Model (Parties in the model: (i) landowner; (ii) builder or
developer; and (iii) contractor who undertakes construction):
Issue involved is
regarding the liability to pay service tax on flats/houses agreed to be given by
builder/developer to the land owner towards the land /development rights and to other
buyers.
Clarification:
Here two important transactions are identifiable: (a) sale of land by
the landowner which is not a taxable service; and (b) construction service provided by
the builder/developer. The builder/developer receives consideration for the
construction service provided by him, from two categories of service receivers: (a) from
landowner: in the form of land/development rights; and (b) from other buyers:
normally in cash.
(A) Taxability of the construction service:

(i)
For the period prior to 01/07/2010: construction service provided by the

builder/developer will not be taxable, in terms of Boards Circular
No.108/02/2009-ST dated 29.01.2009.
(ii)
For the period after 01/07/2010, construction service provided by the

builder/developer is taxable in case any part of the payment/development
rights of the land was received by the builder/ developer before the issuance
of completion certificate and the service tax would be required to be paid by
builder/developers even for the flats given to the land owner.
(B) Valuation:
(i)
(ii)
Value, in the case of flats given to first category of service receiver, is

determinable in terms of section 67(1)(iii) read with rule 3(a) of Service Tax
(Determination of Value) Rules, 2006, as the consideration for these flats i.e.,
value of land / development rights in the land may not be ascertainable
ordinarily. Accordingly, the value of these flats would be equal to the value of
similar flats charged by the builder/developer from the second category of
service receivers. In case the prices of flats/houses undergo a change over the
period of sale (from the first sale of flat/house in the residential complex to
the last sale of the flat/house), the value of similar flats as are sold nearer to
the date on which land is being made available for construction should be
used for arriving at the value for the purpose of tax. Service tax is liable to be
paid by the builder/developer on the construction service involved in the
flats to be given to the land owner, at the time when the possession or right in
the property of the said flats are transferred to the land owner by entering into
a conveyance deed or similar instrument(eg. allotment letter).
Value, in the case of flats given to the second category of service receivers,
shall be determined in terms of section 67 of the Finance Act, 1994.
2.2
Redevelopment including slum rehabilitation projects:
Generally in this
model, land is owned by a society, comprising members of the society with each member
entitled to his share by way of an apartment. When it becomes necessary after the lapse
of a certain period, society or its flat owners may engage a builder/developer for
undertaking re-construction. Society /individual flat owners give No Objection
Certificate (NOC) or permission to the builder/developer, for re-construction. The
builder/developer makes new flats with same or different carpet area for original
owners of flats and additionally may also be involved in one or more of the following:
(i)
(ii)
(iii)
construct some additional flats for sale to others;

arrange for rental accommodation or rent payments for society
members/original owners for stay during the period of re-construction;
pay an additional amount to the original owners of flats in the society.
Clarification:
Under this model, the builder/developer receives consideration for
the construction service provided by him, from two categories of service receivers. First
category is the society/members of the society, who transfer development rights over the
land (including the permission for additional number of flats), to the builder/developer.
The second category of service receivers consist of buyers of flats other than the
society/members. Generally, they pay by cash.
(A) Taxability:
(i)
Re-construction undertaken by a building society by directly engaging a

builder/developer will not be chargeable to service tax as it is meant for the
personal use of the society/its members. Construction of additional flats
undertaken as part of the reconstruction, for sale to the second category of
service receivers, will also not be a taxable service, during the period prior to
01/07/2010;
(ii)
For the period after 01/07/2010, construction service provided by the

builder/developer to second category of service receivers is taxable in case any
payment is made to the builder/ developer before the issuance of completion
certificate.
(B) Valuation:
Value, in the case of flats given to second category of service receivers, shall be
determined in terms of section 67(1)(i) of the Finance Act, 1994.
2.3
Investment model: In this model, before the commencement of the project, the
same is on offer to investors. Either a specified area of construction is earmarked or a
flat of a specified area is allotted to the investors and as it happens in some places,
additionally the investor may also be promised a fixed rate of interest. After a certain
specified period an investor has the option either to exit from the project on receipt of
the amount invested alongwith interest or he can re-sell the said allotment to another
buyer or retain the flat for his own use.
Clarification:
In this model, after 01/07/2010, investment amount shall be treated
as consideration paid in advance for the construction service to be provided by the
builder/developer to the investor and the said amount would be subject to service tax. If
the investor decides to exit from the project at a later date, either before or after the
issuance of completion certificate, the builder/developer would be entitled to take credit
under rule 6(3) of the Service Tax Rules, 1994( to the extent he has refunded the original
amount). If the builder/developer resells the flat before the issuance of completion
certificate, again tax liability would arise.
2.4 Conversion Model: Conversion of any hitherto untaxed construction /complex or
part thereof into a building or civil structure to be used for commerce or industry, after
lapse of a period of time.
Clarification: Mere change in use of the building does not involve any taxable service,
unless conversion falls within the meaning of commercial or industrial construction
service.
2.5 Non requirement of completion certificate / where completion certificate is waived

or not prescribed: In certain states, completion certificates have been waived or are
considered as not required for certain specified types of buildings. Doubts have been
raised, regarding levy of service tax on the construction service provided, in such
situations.
Clarification: Where completion certificate is waived or is not prescribed for a specified
type of building, the equivalent of completion certificate by whatever name called should
be used as the dividing line between service and sale. In terms of the Service Tax
(Removal of Difficulty) Order, 2010, dated 22/06/2010, authority competent to issue
completion certificate includes an architect or chartered engineer or licensed surveyor.
2.6 Build- Operate - Transfer (BOT) Projects: Many variants of this model are being
followed in different regions of the country, depending on the nature of the project.
Build-Own-Operate-Transfer (BOOT) is a popular variant. Generally under BOT model,
Government or its agency, concessionaire (who may be a developer/builder himself or
may be independent) and the users are the parties. Risk taking and sharing ability of
the parties concerned is the essence of a BOT project. Government or its agency by an
agreement transfers the right to use and/or right to develop for a period specified,
usually thirty years or near about, to the concessionaire.
Clarification: Transactions involving taxable service take place usually at three
different levels: firstly, between Government or its agency and the concessionaire;
secondly, between concessionaire and the contractor and thirdly, between
concessionaire and users, all in terms of specific agreements.
At the first level, Government or its agency transfers the right to use and/or
develop the land, to the concessionaire, for a specific period, for construction of a
building for furtherance of business or commerce (partly or wholly). Consideration for
this taxable service may be in the nature of upfront lease amount or annual charges paid
by the concessionaire to the Government or its agency. Here the Government or its
agency is providing renting of immovable property service (renting of vacant land to be
used for furtherance of business or commerce) and in such cases the concessionaire
becomes the service receiver.
In this model, though the concessionaire is undertaking construction of a
building to be used wholly or partly for furtherance of business or commerce, on the
land provided by the government or its agency for temporary use, he will not be treated
as a service provider since such construction has been undertaken by him on his own
account and he remains the owner of the building during the concession period.
At the second level, transaction can take place between a concessionaire and the
contractor. Where the concessionaire himself does not have exposure to construction
sector, he may engage a contractor for undertaking construction of a building on the
land, in respect of which right to use has been obtained in his favour, from the
Government or its agency. If the concessionaire is himself a builder/developer, this level
of transaction may not arise. Where an independent contractor is engaged by a
concessionaire for undertaking construction for him, then service tax is payable on the
construction service provided by the contractor to the concessionaire.
At the third level, the concessionaire enters into agreement with several users for
commercially exploiting the building developed/constructed by him, during the lease
period. For example, the user may be paying a rent or premium on the sub-lease for
temporary use of immovable property or part thereof, to the concessionaire. At this
third level, concessionaire is the service provider and user of the building is the service
receiver. The concessionaire may provide to the users, taxable services such as renting
of immovable property service, business support service, management, maintenance
or repair service, sale of space for advertisement, etc. Service tax is leviable on the
taxable services provided by the concessionaire to the users.
There could be many variants of the BOT model explained above and implications
of tax may differ. For example, at times it is possible that the concessionaire may
outsource the management or commercial exploitation of the building
developed/constructed by him, to another person and may receive a pre-determined
amount as commission. Taxable service here will be business auxiliary service and
service tax is leviable on the commission.
(A) Taxability:
(i)
(ii)
(iii)
the service provided by the Government or its agency to the concessionaire is

liable to service tax;
the construction services provided by the contractor to the concessionaire
would be examined from the point of taxability as to whether the activity is
not otherwise excluded;
the services provided by the concessionaire to the user of the facility are liable
to service tax;
(B) Persons liable to pay tax:

Government or its agency and concessionaire are liable to pay tax on the services being
provided by them. There could be several other persons liable to pay service tax,
depending on the variant of the BOT model followed.
2.7 Joint Development Agreement Model:
Under this model, land owner and
builder/developer join hands and may either create a new entity or otherwise operate as
an unincorporated association, on partnership /joint / collaboration basis, with
mutuality of interest and to share common risk/profit together. The new entity
undertakes construction on behalf of landowner and builder/developer.
Clarification: Circular 148/17/2011-ST dated 13/12/2011, particularly paragraphs 7, 8, 9
apply mutandis mutandis in this regard.
3.
This Circular may be communicated to the field formations and service tax
assessees, through Trade Notice/ Public Notice. Hindi version to follow.
(Samar Nanda)
Under Secretary, TRU
Tel/Fax: 011-23092037

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Circular No.

(A) Taxability of the construction service:

For the period prior to 01/07/2010: construction service provided by the

For the period after 01/07/2010, construction service provided by the

Value, in the case of flats given to first category of service receiver, is

construct some additional flats for sale to others;

Re-construction undertaken by a building society by directly engaging a

For the period after 01/07/2010, construction service provided by the

2.5 Non requirement of completion certificate / where completion certificate is waived

the service provided by the Government or its agency to the concessionaire is

(B) Persons liable to pay tax:

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