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Consult Construction

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CBEC Circular No. 151/2/2012-ST

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  • HC dismisses challenge to CBEC Circular No. 151/2/2012-ST dated February 10, 2012 and TRU recommendations dated January 20, 2016, by owner of land given for joint development; Rejects assessee’s contention that service, if at all rendered by developer, would fall within exempted category u/s 65B(44)(a)(i) of Finance Act, i.e. would constitute merely transfer of title in goods or immovable property by way of sale, gift or in any other manner, since he and his siblings agreed to sell 35% of undivided shares in land and developer agreed to pay a consideration in kind, in the form of constructed area;
  • Distinguishing Allahabad HC rulings in Indian Explosives Ltd and U.P. Solvent Extractors Association, HC states that assessee has no locus standi to challenge said Circulars as any person would then be entitled to challenge the levy on ground that manufacturer / dealer will eventually pass on duty burden to ultimate consumer;
  • It may be true that after construction, parties may exchange constructed area for undivided share of land, but in whatever manner worded, agreement is for construction of super built-up area and what developer has done is actually service of construction; JDA gives rise to a bouquet of rights to developer, one of which is to put up a construction and sell it to third parties alongwith undivided share of land, and those parties certainly avail services of developer as service provider, hence assessee does not stand on a different footing than them  : Madras HC
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