2022 (6) TMI 191 - AAR - GST

Cooperative housing society payments from outgoing members taxable under Section 7 CGST Act despite being gratuitous

In Re: M/s. Monalisa Co-Operative Housing Society Limited.

In Re: M/s. Monalisa Co-Operative Housing Society Limited. - 2023 (68) G.S.T.L. 306 (A. A. R. - GST - Mah.) Issues Involved:1. Taxability of charges received towards upkeep and maintenance from members.2. Taxability of gratuitous payments received from outgoing members.3. Taxability of amounts collected for future major repairs.Issue-Wise Detailed Analysis:1. Taxability of Charges for Upkeep and Maintenance:This issue was withdrawn by the applicant during the preliminary hearing and thus was not addressed in the final judgment.2. Taxability of Gratuitous Payments from Outgoing Members:The applicant argued that gratuitous payments made by outgoing members are voluntary and not in lieu of any service provided by the society, thus not taxable under the CGST Act, 2017. The applicant cited various legal precedents and provisions to support their stance that such payments are gifts and not considerations for services.The concerned officer contended that the term “service” under the CGST Act, 2017, has a broad definition, encompassing activities undertaken by the applicant. Payments made by outgoing members are considered as gratitude for services rendered by the society during their membership and therefore qualify as consideration for services, making them taxable.The judgment referred to the Model Bye Laws of Cooperative Housing Societies in Maharashtra, particularly Bye Law No. 38, which prohibits societies from collecting additional amounts as donations or contributions from transferors or transferees. The court observed that the payments termed as voluntary contributions were actually for services received and future services (such as major repairs), thereby constituting consideration under Section 2(31) of the CGST Act, 2017.The court also noted that the society enjoys a dominant position during the transfer of flats, often resulting in demands for payments under the guise of voluntary donations. The court concluded that these payments are taxable under GST as they are made in response to services rendered by the society.3. Taxability of Amounts Collected for Future Major Repairs:This issue was also withdrawn by the applicant during the final hearing and was not addressed in the judgment.Final Order:1. The question regarding the taxability of charges for upkeep and maintenance was not answered as it was withdrawn by the applicant.2. The receipt of gratuitous payments from outgoing members was affirmed to be taxable under the CGST Act, 2017.3. The question regarding the taxability of amounts collected for future major repairs was not answered as it was withdrawn by the applicant.