Transfer Of Title In Immovable Property Doesn't Attract Service Tax : Supreme Court

The Supreme Court has clarified that an activity which merely involves the transfer of title in immovable property by way of sale cannot be treated as a “service” under the Finance Act, 1994. Consequently, such transactions lie outside the ambit of service tax.

A bench comprising Justices JB Pardiwala and Sandeep Mehta delivered the verdict while dismissing an appeal filed by the Commissioner of Service Tax, New Delhi against M/s Elegant Developers, a partnership firm based in Allahabad. The Revenue had challenged a 2019 decision of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) which had set aside a tax demand of over Rs 10 crore against the firm.

The Department had alleged that Elegant Developers had provided taxable services as a “real estate agent” to Sahara India Commercial Corporation Ltd (SICCL) in connection with the acquisition and development of large parcels of land in different states. The firm, however, maintained that its dealings with SICCL were in the nature of purchase and sale of land, not consultancy or brokerage services, and hence outside the scope of service tax.

Background Of The Dispute

Between 2002 and 2005, Elegant Developers entered into three Memoranda of Understanding (MOUs) with SICCL for the purchase of land in Sri Ganganagar (Rajasthan), Vadodara (Gujarat), and Kurukshetra (Haryana). Under these agreements, the firm undertook to procure contiguous tracts of land, ensure proper title, and bring the landowners before the registering authorities for execution of sale deeds in favour of SICCL.

SICCL agreed to pay the firm a fixed average rate per acre, which was inclusive of the land cost and development expenses. The difference between what the firm paid to individual landowners and the fixed rate received from SICCL represented its profit or loss. Importantly, the firm bore the entire financial risk. If land prices were higher, it absorbed the loss; if lower, it retained the difference as profit.

The Directorate General of Central Excise Intelligence (DGCEI) later initiated proceedings on the ground that Elegant Developers had rendered services relating to acquisition and development of real estate for SICCL without paying service tax. A show cause notice demanding about Rs 10.28 crore for the period October 2004 to March 2007 was issued, invoking the extended limitation period on grounds of alleged suppression of facts.

The Commissioner adjudicated the case against the firm in 2013, classifying it as a “real estate agent” under Section 65(88) read with Section 65(105)(v) of the Finance Act, 1994, and confirming the tax demand with penalty. On appeal, the CESTAT set aside the order, holding that the transactions represented outright sale of land. The Revenue then carried the matter to the Supreme Court.

 Court's Findings

The Supreme Court examined the terms of the MOUs, the definitions in the Finance Act, and the nature of consideration involved. Referring to Sections 65(88) and 65(89), the bench observed that a “real estate agent” or “real estate consultant” must be one who renders services in relation to the sale, purchase, leasing or management of real estate, including advice, consultancy or technical assistance.

The bench then referred to the definition of “service” under Section 65B(44) of the Finance Act, which expressly excludes from its ambit “an activity which constitutes merely a transfer of title in goods or immovable property by way of sale, gift or in any other manner.”

Analysing the MOUs, the Court noted that Elegant Developers had acted on its own account and not as an agent or intermediary of SICCL. It was responsible for identifying and purchasing land in its own name or through powers of attorney, bearing the financial risk, and later transferring title to SICCL through registered sale deeds.

The Court further observed that the Revenue's attempt to bring such transactions within the ambit of “real estate agent” service was misconceived, as there was no element of consultancy, advice or representation involved.

"we are of the firm opinion that the transactions/activities undertaken by the respondent with SICCL did not bring it within the purview of 'Real Estate Agent' or 'Real Estate Consultant' as defined under Sections 65(88) and 65(89) of the Finance Act, 1994, respectively. These transactions were not undertaken for service charges, commission, agency or consultancy but were plain and simple transactions of sale of land, which are expressly protected under the exception clause to the definition of the 'Service' referred to supra," the Court held.

No Suppression, Extended Limitation Not Applicable

On the question of limitation, the Court also disapproved the Revenue's reliance on the extended period under the proviso to Section 73(1) of the Finance Act. That provision allows recovery of tax beyond the normal period only when there is willful suppression, fraud or misstatement with intent to evade tax.

The bench noted that the respondent's transactions were carried out through proper documentation and banking channels, and there was no evidence that any material fact had been suppressed. The burden to establish deliberate suppression lies squarely on the Revenue, the Court emphasised.

"It is a settled principle of law that, for the Department to invoke the extended period of limitation, there must be an active and deliberate act on the part of the assessee to evade payment of tax. Mere non-payment of tax, without any element of intent or suppression, is not sufficient to attract the extended limitation period…," the Court quoted from the recent judgment in Stemcyte India Therapeutics (P) Ltd v. Commissioner of Central Excise and Service Tax.

Holding that the CESTAT had rightly concluded that the activities of Elegant Developers did not constitute taxable service, the Supreme Court dismissed the Revenue's appeals.  

Case : Commissioner of Service Tax v M/s Elegant Developers

Citation : 2025 LiveLaw (SC) 1088

Click here to read the judgment