2024 (2) TMI 646 - AAR - GST

Transfer of 99-year leasehold rights in Noida land constitutes taxable service under GST Act Schedule II

In Re: M/s Fena Private Limited

The AAR, UP held that transfer of leasehold rights in land allotted by Noida Authority constitutes supply of services under GST Act. The applicant ... Scope of supply - transfer of leasehold rights in respect of Noida Authority allotted land from applicant to M/s S.K. Food Equipments Pvt. Ltd. - GST is payable on the transfer of leasehold rights in respect of the consideration of Rs. 6,60,00,000/-to be received by them from M/s S.K. Food Equipments Pvt. Ltd. for the land allotted by Noida Authority or not - Eligibility of input tax credit in the hands of M/s S.K. Food Equipments Pvt. Ltd - HELD THAT:- Scope of supply under section 7 (1) of the GST Act includes all forms of supply of goods and services, including a sale, transfer, barter, exchange, license, rental, lease or disposal made or agreed to be made. Section 7 (I A) read with Schedule 11 under the GST Act provides which of such supplies shall be treated as supply of goods or services. Paragraph 2 of Schedule II provides that with respect to transactions relating to land and buildings, any lease, tenancy, easement, license to occupy the land, letting out of a building including a commercial, industrial or residential complex for business or commerce is the supply of services. In the instant case, the applicant had entered into lease deed with Noida Authority for 99 years. Subsequently, the applicant has entered into agreement with M/s S.K. Food Equipments Pvt. Ltd and has transferred the lease rights with the approval of Noida Authority. The moment the lease right has been transferred from the applicant to M/s S.K. Food Equipments Pvt. Ltd, the party has provided service of transferring the leasehold rights and thus action of the applicant is very well covered under Paragraph 2 of Schedule II of CGST Act 2017. The applicant, apart from the conditional possession of the Demised Premises enjoys no title or ownership, which is central to sale of any immovable property within the meaning of section 54 of the Transfer of Property Act, 1882. The applicant's interest in the benefits arising out of the Demised Premises is limited to sub-leasing in terms of the Deed, and he is capable of transferring the benefits only to that extent. The assignment, therefore, does not amount to transfer of any benefit other than leasehold rights in terms of the Deed for the unexpired period of the lease and is no transfer of any immovable property in the context of the GST Act. The activity of assignment is in the nature of agreeing to transfer one's leasehold rights. It does not amount to further sub-leasing, as the applicant's rights as per the Deed stands extinguished. Neither does it create fresh benefit from land other than the leasehold right. It is like a compensation for agreeing to do the transfer of (he applicant's rights in favour of the assignee. It is a service classifiable under Other miscellaneous service (SAC 999792) and taxable @ 18% under SI.No. 35 of Notification No. 11/2017-CT (Rate) dated 28/06/2017. Issues Involved:1. Whether the transfer of leasehold rights falls within the ambit of supply as defined under Section 7 of the CGST Act.2. Whether GST is payable on the transfer of leasehold rights for the consideration received.3. Eligibility of input tax credit for the recipient of the leasehold rights.Summary:Issue 1: Transfer of Leasehold Rights as SupplyThe applicant sought clarification on whether the transfer of leasehold rights in respect of Noida Authority allotted land to M/s S.K. Food Equipments Pvt. Ltd. would fall within the ambit of 'supply' as defined under Section 7 of the CGST Act, 2017. The ruling clarified that the scope of supply under Section 7(1) includes all forms of supply of goods and services, including lease. Paragraph 2 of Schedule II specifies that any lease, tenancy, easement, or license to occupy land is a supply of services. Therefore, the transfer of leasehold rights by the applicant is considered a supply of service under the GST Act.Issue 2: GST Payable on Transfer of Leasehold RightsThe applicant questioned whether GST is payable on the transfer of leasehold rights for the consideration of Rs. 6,60,00,000/- received from M/s S.K. Food Equipments Pvt. Ltd. The ruling confirmed that the transfer of leasehold rights is a service classifiable under Other Miscellaneous Services (SAC 999792) and is taxable at 18% under SI.No. 35 of Notification No. 11/2017-CT (Rate) dated 28/06/2017. Therefore, GST is payable on the transfer of leasehold rights for the consideration received.Issue 3: Eligibility of Input Tax CreditThe applicant sought clarification on the eligibility of input tax credit for M/s S.K. Food Equipments Pvt. Ltd. on the transfer of leasehold rights. The ruling stated that comments could not be offered on this issue as it pertains to the recipient of the service, and the application for advance ruling was not admitted for this question.Conclusion:The transfer of leasehold rights by the applicant to M/s S.K. Food Equipments Pvt. Ltd. falls within the ambit of supply as defined under Section 7 of the CGST Act, and GST is payable on the consideration received for such transfer. The eligibility of input tax credit for the recipient was not addressed in the ruling. This ruling is valid within the jurisdiction of the Authority for Advance Ruling, Uttar Pradesh, and subject to the provisions under Section 103(2) of the CGST Act, 2017.