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GST liability on Recovery Charges
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....ST liability on Recovery Charges<br> Query (Issue) Started By: - Ethirajan Parthasarathy Dated:- 23-12-2021 Last Reply Date:- 30-1-2022 Goods and Services Tax - GST<br>Got 8 Replies<br>GST<br>A person is registered under GST on account of Rent from commercial property. In a particular year the Land Lord recovers a sum of say 2,00,000 /- towards damages and re-painting charges from the tenant. My....
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.... Query is whether such amount is liable to GST and also income tax. Reply By KASTURI SETHI: The Reply: Yes. GST is applicable on both considerations. Reply By Ethirajan Parthasarathy: The Reply: sir, Normally the recovery is done at the time of tenant vacating. In such situation who is the receiver of repairs or repainting.service Again,though the deduction is made from out going tenant, inv....
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....ariably no re painting is done., Reply By KASTURI SETHI: The Reply: Dear Sir, In my view, in this scenario, a person who receives the payment is service provider (supplier) and who makes the payment is the service receiver. Repair, re-painting etc. both will be covered under 'liquidated damages'. It is classifiable under Service Accounting Code Heading No. 9997 (other services, nowhere ....
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....else classified). Notification No.11/17-CT(Rate) dated 28.6.17 (as amended) and serial no. 35 refer. Also see Schedule II, Entry No. 5, Clause (e) of the CGST Act, 2017, the relevant portion is reproduced as under : "agreeing to the obligation to refrain from an act, or to tolerate an act or a situation, or to do an act;" The outgoing tenant has made the payment for the repairs, repainting etc....
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..... Thereafter, the landlord gets the repair etc. done or not from any person; that is not relevant. This service is covered under Schedule-II at serial no.5 (e) read with above notification. If we read above conjointly, such amount is taxable de jure. In case the landlord/assessee can prove that such amount is compensation and not income, then that person has the basis for fighting the case in th....
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....e court. Reply By Shilpi Jain: The Reply: Liquidated damages not liable to gst. There is a Bombay HC decision Bai Mamubai Trust - 2019 (9) TMI 929 - BOMBAY HIGH COURT. And a number of tribunal decisions under ST including HC Reply By KASTURI SETHI: The Reply: The question arises is whether these recovery charges are a compensation or not ? Whether these are LD charges are not ? In the given sc....
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....enario, the landlord has provided renting service to the tenant and for that supply he has received the rent. It is an undisputed fact. Now it is the legal duty of the landlord to repair, maintain and renovate his own immovable property. Why should he charge from the tenant on the ground of repair, damage, re-painting etc. ? The said charges cannot be treated as compensation charges. It is not act....
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....ionable claim. For example ; when we receive insurance claim from insurance co. on account of accident of vehicle etc., that is compensation charges. That is actionable claim. In this scenario, such recovery charges are income and and hence consideration and liable to GST. Such charges may be considered as a kind of rental income as additional consideration on account of providing service of ....
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....9;Renting of Immovable Property'. In view above, Such charges are not compensation at all and no case law on LD charges passed in pre-GST era or post GST regime will help the service provider in his favour. Since my views are pro-revenue, these may not be liked by the querist but these are based on legal position and hence impartial, unprejudiced and sincere. To agree or not ; that is pr....
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....erogative of the querist or the tax payer. Reply By Ethirajan Parthasarathy: The Reply: sir Thanks for your detailed reply Reply By CAHemanth Kumar: The Reply: Agreed with kasthuri sethi Sir, Charged recovered may not be in the nature fo liquidated damages. Thereby gst will be applciable on the same. Reply By Shilpi Jain: The Reply: Taxability depends on how you maintain your documentatio....
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....n and for what reasons the amount is shown to be collected. In case of damages there is a possibilty of keeping it out of levy.<br> Discussion Forum - Knowledge Sharing ....