As India continues its scorching pace of economic growth, many sectors that were not historically favoured by the government are gaining prominence. One such sector is real estate, which has a large employment generation potential and is a significant source of tax revenue. Additionally, this sector has attracted a large amount of foreign investment in recent times. Therefore, the government would do well to address the many complexities and ambiguities—on the indirect tax front—that the sector is facing.

Historically, the key indirect taxes that applied on the construction and real estate sector were works contract tax (now VAT) and stamp duty. With the expanding service tax net, various construction activities have been brought within the service tax net, notable among them being construction of commercial and residential complexes and renting of immovable property. The latest addition to this list was service tax on works contract, which was introduced in the last budget.

However, the amount of works contract tax payable, under both service tax and VAT, is anything but clear. The Supreme Court, in K Raheja Development Corporation’s case in 2006, held that if a developer enters into a contract for sale of a residential apartment before construction is completed, it would be a works contract.

If the agreement is entered into after the flat or unit is already constructed, this would be an agreement for sale of immovable property and not a works contract. Broadly, this was based on the reasoning that an agreement to sell a flat that is under construction is an agreement to construct a flat for the eventual buyer of the flat. An agreement to construct a building/ apartment is a works contract.

Although this judgment was in the context of the definition of the term ‘works contract’ under the Karnataka Sales Tax Act, the service tax authorities were quick to adopt the ratio and demand service tax on the labour portion of the ‘works contract.’

Sales of flats would anyway attract stamp duty and registration charges, which typically aggregate to 10% of the sale consideration. Before the Raheja case, the consideration passing from the buyer of a flat to the developer did not attract VAT or service tax. The Raheja decision deems this sale agreement to be a works contract if the flat is under construction.

As India continues its scorching pace of economic growth, many sectors that were not historically favoured by the government are gaining prominence. One such sector is real estate, which has a large employment generation potential and is a significant source of tax revenue. Additionally, this sector has attracted a large amount of foreign investment in recent times. Therefore, the government would do well to address the many complexities and ambiguities—on the indirect tax front—that the sector is facing.

Historically, the key indirect taxes that applied on the construction and real estate sector were works contract tax (now VAT) and stamp duty. With the expanding service tax net, various construction activities have been brought within the service tax net, notable among them being construction of commercial and residential complexes and renting of immovable property. The latest addition to this list was service tax on works contract, which was introduced in the last budget.

However, the amount of works contract tax payable, under both service tax and VAT, is anything but clear. The Supreme Court, in K Raheja Development Corporation’s case in 2006, held that if a developer enters into a contract for sale of a residential apartment before construction is completed, it would be a works contract.

If the agreement is entered into after the flat or unit is already constructed, this would be an agreement for sale of immovable property and not a works contract. Broadly, this was based on the reasoning that an agreement to sell a flat that is under construction is an agreement to construct a flat for the eventual buyer of the flat. An agreement to construct a building/ apartment is a works contract.

Although this judgment was in the context of the definition of the term ‘works contract’ under the Karnataka Sales Tax Act, the service tax authorities were quick to adopt the ratio and demand service tax on the labour portion of the ‘works contract.’

Sales of flats would anyway attract stamp duty and registration charges, which typically aggregate to 10% of the sale consideration. Before the Raheja case, the consideration passing from the buyer of a flat to the developer did not attract VAT or service tax. The Raheja decision deems this sale agreement to be a works contract if the flat is under construction.

If the principle in the Raheja case is uniformly applied to all new apartments that are constructed, there could be an additional 8% (4% due to VAT and 4% due to service tax) impact on the difference between the cost of construction and the sale price of the flats! This is a huge burden that would be passed on to the prospective purchasers of flats, sharply increasing the cost of purchase.

To ensure a steady cash flow and reduce financing costs during construction, all flats are sold while they are under construction. Therefore, this burden would fall on every new flat that is constructed. Further, the VAT authorities can demand back taxes for many years, limited only by the period of limitation prescribed under the respective states’ sales tax laws. The magnitude of this potential tax liability is quite staggering.

However, is an agreement for sale of a flat that is under construction really an agreement for construction of a flat? Or is it simply a financing arrangement, whereby the purchaser books a flat while it is under construction by the developer for himself as an entrepreneurial venture rather than on behalf of and under instructions from the buyer.

The gap in consideration between what the developer pays to the contractor (which is admittedly a works contract) and what the purchaser pays to the developer is clearly attributable to the value of land and the profit for the entrepreneurial risk taken by the developer.

If this amount is subject to up to an 8% additional tax, by considering this to be a works contract, it could almost finish off this industry just as it is about to take off! The sector is facing other disputes on taxability of lease rentals and credit available for inputs against service tax liability on lease rentals, but these are trivial as compared to the main issue on works contracts but also need clarification.

It seems that this industry is too important for the government to take a view that such issues should be left to the industry to sort out through recourse to litigation. Therefore, if the government takes a holistic view of the tax burden on this industry, it can enact appropriate measures to make the tax burden moderate, clear and easy to determine.