2020 (3) TMI 240 - AAR - GST

Taxability of Transactions: Completion Certificate Timing Impacts GST Liability

The Authority ruled that the issuance of the completion certificate by the competent authority is crucial for determining the taxability of the ... Classification of supply - supply of goods or supply of services - sale / booking of units in a project after its first occupation and receipt of advance against that booking - whether classifiable under Para 5 of Schedule-III to the CGST Act, 2017 - Sale or not - booking of units in a project and consequently receipt of advance against that booking after first occupation of the project - levy of GST. Whether the sale / booking of units in a project after its first occupation and receipt of advance against that booking is classifiable under Para 5 of Schedule-III to the CGST Act, 2017 as sale of building and thus neither regarded as Supply of goods nor supply of services? Thus whether the same is outside the purview of Goods and Services Tax? - HELD THAT:- Tbuilding completion certificate as desired by the applicant, has not been issued by the Municipal Corporation, Bilaspur (C.G.) owing to non-compliance of the legal provisions and for Want of procedures by the applicant, as mandated under Section 301 of Municipal Corporation Act, 1956 and Rule 98 of Land Development Rules, 1984 - In view of the above, the date of issuance of completion certificate by the competent authority in the instant case, shall be considered as the date of completion of the property and if the entire amount of consideration has been received after such date of completion, then that would not be treated as a taxable service. If any part of the Consideration is received before such date. then the transaction would be treated as a supply of service as per clause 5 of Schedule II to the GST Act and attracts the levy of GST. Whether the booking of units in a project and consequently receipt of advance against that booking after first occupation of the project, where the project has been completed and promoter has applied for issuance of completion certificate, which is pending before local authority; is outside the purview of Goods and Services Tax? - HELD THAT:- The occupancy of any unit, without observance of all procedures as mandated under the statute or any other law/rule for the time being in force leading to non-issuance of such mandatory completion certificate by the Competent authority, can in no way be termed as a valid occupancy, especially in the wake of clarifications supra, issued by the competent jurisdictional authorities. Although this authority is not in judgment on the legality or otherwise of the occupancy of the unit by any of the occupant without the issuance of the said completion certificate by the competent authority, it follows from the response by the authorities of Municipal Corporation - Allowing the occupants to such occupancy of the units by the applicant, without observance of procedures as mandated under the law can also be inferred as a modus operandi to circumvent the procedures to avoid exigibility to tax. The aforesaid letter from the authorized officers of Municipal Corporation, Bilaspur makes it abundantly clear that the said completion certificate is a legal requirement and is issued only on compliance, certifying therein that the building is fit to be occupied thereby essentially declaring that the building construction has reached a stage where all byelaws and features of sanctioned plan have been accomplished or completion has taken place and that the same is ready for safe occupancy. Accordingly it is found that the date of issuance of completion certificate by the competent jurisdictional authority in the instant case shall be considered as the date of completion Of the property and if the entire amount of consideration has been received after such date of completion, then that would not be treated as a taxable service. If any part of the consideration is received before such date, then the transaction would be treated as a supply of service as per clause 5 of Schedule II to the GST Act, attracting the levy of GST - The first occupation as claimed by the applicant in the instant case, without having the mandatory completion certificate by the jurisdictional authorities is found to be devoid of any merit. Issues Involved:1. Classification of sale/booking of units after first occupation and receipt of advance under Para 5 of Schedule-III to the CGST Act, 2017.2. GST applicability on booking of units and receipt of advance after first occupation but pending completion certificate.Issue-wise Detailed Analysis:1. Classification of Sale/Booking of Units After First Occupation and Receipt of Advance:The applicant sought clarification on whether the sale/booking of units in a project after its first occupation and receipt of advance is classifiable under Para 5 of Schedule-III to the CGST Act, 2017, as the sale of a building, thus neither regarded as the supply of goods nor supply of services, and therefore outside the purview of GST.Legal Position:- As per Section 9(1) of the CGST Act, 2017, tax is levied on the supply of goods or services.- Section 7(2) states that activities or transactions specified in Schedule III are treated neither as a supply of goods nor a supply of services.- Entry 5 of Schedule III includes the sale of land and, subject to clause (b) of paragraph 5 of Schedule II, the sale of buildings.Analysis and Discussion:- Schedule II, Entry 5(b) stipulates that the construction of a building intended for sale to a buyer, except where the entire consideration has been received after the issuance of a completion certificate or after first occupation, whichever is earlier, is treated as a supply of service.- The applicant argued that even if the completion certificate has not been received, if first occupancy has taken place, then the receipt of consideration after first occupation should not be regarded as a supply of services and hence outside the purview of GST.Judgment:- The date of issuance of the completion certificate by the competent authority is considered the date of completion of the property.- If the entire consideration is received after such date, it is not treated as a taxable service.- If any part of the consideration is received before such date, the transaction is treated as a supply of service and attracts GST.- The first occupation without the mandatory completion certificate is found to be devoid of merit.2. GST Applicability on Booking of Units and Receipt of Advance After First Occupation but Pending Completion Certificate:The applicant sought clarification on whether the booking of units and receipt of advance after first occupation, where the completion certificate is pending, is outside the purview of GST.Legal Position:- The applicant referred to Section 191 of 'The Chhattisgarh Municipalities Act, 1961' and Section 301 of 'The Chhattisgarh Municipal Corporation Act, 1956,' which stipulate that if the Council/Commissioner fails to communicate refusal within a specified period after the receipt of the notice of completion, permission shall be deemed to have been granted.Analysis and Discussion:- The applicant contended that since the completion certificate is pending and first occupancy has taken place, the receipt of consideration after first occupation should be outside the purview of GST.- The Authority referred to a letter from the Municipal Corporation, Bilaspur, confirming that the completion certificate had not been issued due to non-compliance with legal provisions and procedures.Judgment:- The completion certificate is a legal requirement, and its issuance certifies that the building is fit for occupation.- The date of issuance of the completion certificate by the competent authority is considered the date of completion.- If the entire consideration is received after the date of completion, it is not treated as a taxable service.- If any part of the consideration is received before such date, the transaction is treated as a supply of service and attracts GST.- The first occupation without the mandatory completion certificate is found to be devoid of merit.Conclusion:The Authority ruled that the date of issuance of the completion certificate by the competent authority is crucial for determining the taxability of the transaction. If the entire consideration is received after the issuance of the completion certificate, it is not treated as a taxable service. However, if any part of the consideration is received before the issuance of the completion certificate, the transaction is treated as a supply of service and attracts GST. The first occupation without the mandatory completion certificate is not considered valid.