Confusion galore on real estate contracts Source: Business Standard September 22, 2008 Author: Mukesh Butani, Partner Raheja’s case poses a challenge for RE Developers the taxation of sale of ‘under construction’ unit transactions has come up for debate after the judgment of the Supreme Court in the case of K Raheja. The judgment was delivered in the context of Karnataka Sales Tax Act, which clarified the scope and definition of “works contract”. The facts of the case suggest that the developer (Raheja) responsible for real estate development and allied contracts entered into development agreement with the land owners. In pursuance thereto, the developer obtained plan sanctions and constructed residential apartments and commercial complexes. The agreements between the landowner and developer provided that upon completion of the construction, the residential apartment or the commercial complex would be handed over to the purchasers, who would obtain an undivided interest in the land underlying. The question before the Court was whether the developer was a ‘dealer’ and hence liable to pay turnover tax (on works contract) under the Karnataka Sales Tax in relation to agreements entered into with the purchasers. The Supreme Court held that where a developer sold the flat ‘under construction’, such transactions would be characterized as works contract, since the act of constructing the flat was performed on behalf of the purchaser. It, however, clarified that if it were a case of sale of fully-constructed flat, it would not be works contract and hence, no tax would apply. In summary, whether a contract would comprise as works contract or not would depend upon the determination if it is sale of an immovable property or transfer of movable property in goods. Legislative framework Under the relevant statutes, sale or transfer of immovable property is governed under the Transfer of Property Act and sale of movable property is government under the Sale of Goods Act and hence liable to sales tax. In 1982, the 42nd amendment to the constitution expanded the scope of levy of sales tax to cover transfer of property (in goods) in the course of execution of works contract. Pursuant to the amendment, various states enacted laws to levy works contract sales tax on such transactions. Prior to Raheja’s case, the consideration passing from the buyer of a flat to the developer did not attract VAT. Although the Raheja’s judgment was in the context of definition of the term ‘works contract’, service tax authorities have acted rapidly to demand service tax on the labour component of the ‘works contract.’ The Raheja’s decision deems such sale agreement to be in the nature of works contract, if such flat is under construction. Developers are faced with a realistic threat of potential double taxation of ‘works contracts’ under the state sales tax/VAT. Raheja’s decision being reconsidered Recently in a judgment in Larsen & Toubro’s case, the Apex Court has doubted the law laid down in the Raheja’s case. In L&T’s case the developer (L&T) is engaged in redevelopment involving construction of flats and subsequent sale thereof. Revenue Department’s argument is that such sale is liable to tax for the reason that transaction for construction and sales of flats are in the nature of ‘works contract’. Development agreement or JV agreement Typically in real estate transactions, the land-holder contributes the land, the developer constructs the building and sells the flats. As a result, each owner becomes the owner of an Apartment with corresponding undivided share in the land and an undivided share in the common areas. The usual feature of such agreements is that the land-holder will have no say or control in the development. Nor will the land-holder have any say as to whom and at what cost the developers share of apartments are to be dealt with or disposed of. Land owners only right is to demand delivery of his share of constructed area. An alternate contention is that such agreements are neither contracts for construction, nor contracts for sale of apartments, but are contracts entered for mutual benefit. In a true joint venture agreement between the land- owner and developer, the land-owner is a partner or co-adventurer where the land owner has a say or control in the construction and participates in management of the JV. In such situation, the land owner is neither a consumer nor a service provider. Such JV’s are comparatively rare. What is factually prevalent are agreements which are a hybrid arrangements for construction, consideration & sale and are at best pseudo joint-ventures. Ordinarily, a developer is not interested in sharing the control of his business. Except assuring the land owner a specified constructed area and consideration, the developer ensures absolute control Construction is ‘Service’ for consumer grievance purposes Interestingly, the Supreme Court in F C Gulati’s case has ruled that if the developer is in breach of his obligation, the land owner has two options. He has the right to enforce specific performance and/or claim damages under civil remedy. Alternatively, he can approach the Consumer forum; the developer being classified as a service provider. Can the ratio of interpretation under the consumer protection act be applied for levy of works contract tax? I guess no. In summary, whereas, the L&T’s decision may have come as a temporary reprieve for real estate developers, until a larger bench renders its verdict, need of the hour is to prevent over zealous revenue officials from levy of works contract tax. The recent move of the court to reconsider principles in Raheja’s case would be closely watched by real estate developers. The court has hinted that examination has to be made in the context of definition of sale under the Sale of Goods Act and Transfer of Property Act. Further, it has also observed that if the ratio of decision in Raheja’s case is accepted, there is no difference between works contract and contract for sale of immovable property!