MAGUS CONSTRUCTION PVT LTD Vs. UNION OF INDIA

JUDGEMENT

(1.) BY making this application under Article 226 of the Constitution of India, the petitioners, who claim that the petitioner No. 1 is a private limited company, engaged in the business of development and sale of immovable property, i. e. , real estate, have impugned a notification, dated 06. 03. 2006, issued by the respondent No. 3, namely, Superintendent of Central Excise, to the petitioner, whereby the petitioner company has been asked to get itself registered under Section 69 of the Finance Act, 1994 (hereinafter referred to as, 'the Finance Act, 1994'), inasmuch as the petitioner company has been, according to the respondent No. 3, 'providing Commercial or industrial Construction Service/construction of Complex Service'. The petitioners challenge the very authority of the respondent No. 3 to issue the notice, which stands impugned in the present writ petition, the case of the petitioners being, in brief, thus: The petitioner No. 1 is a private limited company engaged in the business of development and sale of immovable properties i. e. real estates. The petitioner company constructs buildings and sells premises/flats in such buildings. During the course of development of such property and construction of buildings thereon and also after completion of such construction, the petitioner Company enters into 'flat purchase agreements' with various premises/flat purchasers, whereunder the petitioner Company allots and sells flat/premises, in such buildings, to the purchasers. The said transaction is a transaction of sale of flats/premises and the consideration is payable to the petitioner Company in installments as per the terms, which may be mutually agreed upon, through the terms of the agreement are, usually, co-related to the extent and the stage of the development of the constructional work. The agreement for sale of such flats is stamped as sale of flat/premises for the entire consideration. Before accepting money as advance payment or deposit out of the sale price, the petitioner Company enters into an agreement for sale, which is registered. The agreement contains various details and price including area of the flat, the price of the flat (the price of common areas and facilities being shown separately) and various other facilities concerning the flat, etc. For the purposes of carrying out construction work of the buildings, the petitioner company engages various contractors for obtaining construction related services to the petitioner company. Thus, in their various projects, the petitioners have engaged reputed contractors. The petitioners, at times, engage contractors, who supply labour. Sometimes, the petitioners carry out part of the constructional activities. However, the petitioners carry out such constructional activities for themselves and for their own purposes and not for any one else. The transaction between the petitioners and the flat purchasers is purely a transaction for sale of the flat/premises and cannot be treated as a contract for rendering of service of any nature whatsoever. On certain occasions, instead of purchasing the land from the owners, the petitioners enter into agreements with the owners of the land, such agreements being popularly known as "development Agreement". Under such agreements, the petitioners become entitled to construct a building on the land and sell the flats, which may be constructed thereon. The petitioners acquire all the rights, title, interest and advantages of the owners including the entitlement to sell, transfer, deal with, dispose off all the premises and areas in the building or structures to be constructed by the petitioners. The petitioners are given the right to enter upon the land, to raise constructions thereon and sell flats constructed on such land. Even after execution of such agreements, the constructional activities, carried out by the petitioners, are mostly through other persons working as external contractors. In any case, such constructional/developmental activities are carried out by the petitioners for themselves and for their own benefits and not for any other entity or person.

(2.) THE respondents have resisted the writ petition by filing an affidavit, their case being, briefly stated, as under:

(3.) THE moot question, which the present writ petition has raised, is this: Whether the petitioner company has been working, as a 'service provider', for those persons with whom the petitioner company enters into agreements and constructs flats for the purpose of sale to those with whom such agreements are entered into?