Development rights as immovable property exclude service tax, while related input credit remains recoverable within normal limitation.
Transfer of development rights in land for a share of built-up area is a transaction in immovable property, not a taxable construction or other service, because such rights are benefits arising from land. Service tax paid on that transaction may be refundable, subject to unjust enrichment. Works-contract and administrative services received from the developer do not qualify as input services where the development-rights transfer is not an output service; related CENVAT credit is therefore recoverable. However, a bona fide treatment of the transfer as taxable construction service restricts recovery to the normal limitation period and precludes penalty.
Issues: (i) Whether transfer of development rights in land to a developer in exchange for a share of the built-up area constitutes a taxable service; (ii) Whether CENVAT credit of tax paid on works-contract and administrative services received from the developer is admissible; (iii) Whether the extended limitation period and penalties are invocable in relation to the inadmissible CENVAT credit.
Issue (i): Whether transfer of development rights in land to a developer in exchange for a share of the built-up area constitutes a taxable service.
Analysis: Development rights are benefits arising out of land and consequently constitute immovable property under Section 3(26) of the General Clauses Act, 1897. A transfer of such rights is a transaction in immovable property, not a provision of construction service or any other taxable service.
Conclusion: Transfer of development rights was not a taxable service; the service-tax demand and related penalties under Sections 77 and 78 of the Finance Act, 1994 are unsustainable, in favour of the assessee.
Issue (ii): Whether CENVAT credit of tax paid on works-contract and administrative services received from the developer is admissible.
Analysis: Since transfer of development rights was not an output service, the works-contract and administrative services received from the developer could not qualify as input services for that transaction.
Conclusion: CENVAT credit is inadmissible and recoverable under Rule 14 of the CENVAT Credit Rules, 2002, against the assessee.
Issue (iii): Whether the extended limitation period and penalties are invocable in relation to the inadmissible CENVAT credit.
Analysis: The credit was availed because the assessee bona fide treated transfer of development rights as taxable construction service and discharged service tax on that basis. This conduct did not warrant invocation of the extended limitation period or imposition of penalty.
Conclusion: Recovery of inadmissible credit is restricted to the normal limitation period, and the penalty under Rule 15 of the CENVAT Credit Rules, 2002 is set aside, in favour of the assessee.
Final Conclusion: The transfer of development rights is treated as a transaction in immovable property; service tax paid on it may be claimed as refund subject to the statutory bar of unjust enrichment, while inadmissible credit remains recoverable only within the normal period.
Ratio Decidendi: Transfer of development rights, being a benefit arising out of land and thus immovable property, is not a taxable service; services received for such transfer cannot generate input-service credit, though a bona fide contrary tax position precludes extended limitation and penalty.