TaxTMI 
TaxTMI 
2023 (1) TMI 87
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....nbsp; Total 130 7406.99 100.00% 2. The applicant has submitted that carpet area of each shop is less than 90 square meter, carpet area of each duplex is less than 90 square meter and proposed selling price of each duplex is more than rupees 45 lakh. It is submitted that the carpet area of each apartment is less than 90 square meter and proposed selling price of each apartment is less than rupees 45 lakh. 3. The applicant submits that the carpet area of commercial apartment (shops) is less than 15% of the total carpet area of the project. It falls under the definition of "Residential Real Estate Project". As per the notification no. 03/2019-Central Tax (Rate) dated 29/03/2019 vide entry no. (ib) the said commercial apartments (shops) are chargeable to tax @5%. Duplexes will be chargeable to tax @ 5% vide entry no. 9(ia) as it does not satisfy the definition of "affordable residential apartments". 4. It is submitted that the applicant is of the view that construction of residential flats will attracts GST @ 1% as per entry No. (i) of Not. No. 3/2019-CT (Rate) irrespective of the fact these flats are part of the same residential real estate project which consists ....
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.... by the competent authority or after its firs occupation, whichever is earlier shall be treated as "supply of services" & it shall be taxable at the rates as prescribed. 6. The applicant submits that as per Notification No.11/2017-Central Tax (Rate) dated 28/06/2017 as amended by Notification No. 3/2019-Central Tax (Rate) dated 29/03/2019 w.e.f. 01/04/2019, effective rate of GST applicable on construction of residential apartments by promoters in a real estate project are as under: Sr.No Description Effective rate of GST (After deduction of value of Land) 1 Construction of affordable residential apartments in RREP or REP (Serial No.3(i) & i(c) of table) 1% without ITC on total consideration 2 Construction of residential apartments other than affordable residential apartments in RREP or REP (Serial No.3(ia) & (id) of table) 5% without ITC on total consideration 3 Construction of commercial apartment in RREP (Serial No. 3(ib) of table) 5% without ITC on total consideration RREP=Residential Real Estate Project REP =Real Estate Project 7. The term "Residential Real Estate Project (RREP)", as defined in the said notification, s....
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.... satisfies the definition of "Affordable residential apartment" & the construction of some of the units which does not satisfy the definition of "Affordable residential apartment" in that case whether the supplier can apply the GST rate as specified in item no. (i) on units which satisfies the definition of "affordable residential apartments" & GST rate as specified in item no. (ia) & (ib), as the case may be, on the units which are non-affordable residential units in the same residential real estate project? 2. With respect of our case, promoter is constructing affordable residential units as well as non-affordable residential units in "Residential Real Estate Project (RREP)". In such case can the promoter apply separate GST rates in following manner in respect of construction of affordable residential apartments & non-affordable residential apartments in the same project (RREP)? Sr. No. Description Rate of Tax 1 Construction of commercial units in RREP (Shops) 5% 2 Construction of non-affordable residential units in RREP (Duplexes) 5% 3 Construction of affordable residential units in RREP (Flats) 1% Personal Hearing: 13. Personal heari....
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....oject. (vi) The applicant in his application has informed that the carpet area of shops in total project is less than 15% and area of the flats to be constructed is less than 90 square meter and price of these flats is also less than forty five lakhs rupees. (vii) In light of the facts, it appears that the project consisting flats fulfils the parameters prescribed in the above provisions to be considered as affordable residential apartment. FINDINGS: 15. We have considered the submissions made by the Applicant in their application for advance ruling as well as the submissions made by authorised signatory, during the personal hearing proceedings on 26-9-22 before this authority. We also considered the issue involved, on which advance ruling is sought by the applicant, relevant facts & the applicant's interpretation of law. 16. At the outset we would like to make it clear that the provisions of CGST Act and GGST Act are in pari materia and have the same provisions in like matter and differ from each other only on a few specific provisions. Therefore, unless a mention is particularly made to such dissimilar provisions, a reference to the CGST Act would a....
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....2 of Real Estate (Regulation and Development) Act, 2016 (16 of 2016). clause (k) of section 2 of Real Estate (Regulation and Development) Act, 2016 (16 of 2016) is read as under : (k) "carpet area" means the net usable floor area of an apartment, excluding the area covered by the external walls, areas under services shafts, exclusive balcony or verandah area and exclusive open terrace area, but includes the area covered by the internal partition walls of the apartment. Explanation.- For the purpose of this clause, the expression "exclusive balcony or verandah area" means the area of the balcony or verandah, as the case may be, which is appurtenant to the net usable floor area of an apartment, meant for the exclusive use of the allottee; and "exclusive open terrace area" means the area of open terrace which is appurtenant to the net usable floor area of an apartment, meant for the exclusive use of the allottee; 18.2 The applicant has submitted Form 3 {For Registration of a Project and subsequent withdrawal of Money) duly certified by Chartered Accountant. In the Annexure of Form-3 mentioned un-booked total carpet area 7407 Sq. Mtrs of the impugned Proje....
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....ed that the Residential Flat other than affordable category of Residential Flats and Commercial Shops are eligible for payment of GST Rate of Tax @ 5% without ITC in terms of entry No. 3 (i), (ia) and (ib) of Notification No. 11/2019-CT (Rate) dated 28-6-2017 amended by Not. No. 3/2019-CT (Rate) dated 29-3-2019. 20.3 We have noticed that for the applicability of GST Tax Rate @ 1% in case of affordable residential Flat without ITC the conditions mentioned in (i) to (iv) in Para 20.1 shall be satisfied. Further, for Leviability of @ 1% without ITC of affordable residential apartment other than above conditions, for Leviability of @ 5% without ITC of Residential Flat (other than affordable residential Flat) and Commercial Shop, the following conditions shall also be satisfied : (i) Credit of input tax charged on goods and services used in supplying the service has not been taken except to the extent as prescribed in Annexure II in the case of RREP. (ii) The registered person shall pay, by debit in the electronic credit ledger or electronic cash ledger, an amount equivalent to the input tax credit attributable to construction in a project, time of supply of which i....
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.... (ix) Input Tax Credit not availed shall be reported every month by reporting the same as ineligible credit in GSTR-3B [Row No. 4 (D)(2)]. 20.4 We find from the records of the applicant available with us that the applicant is constructing the present project in Vadodara City which falls under the category of a non-metropolitan city. Further, applicant has submitted that affordable Residential Flat carpet area is below 90 Sq. Mtr and consideration charged from the customer is less than Rs. 45 lacs. In this regard applicant have submitted FORM-3 duly signed by Chartered Accountant wherein mentioned the carpet area of each flat of both types and commercial shop; also the consideration of the Flat of both types and commercial shops. The applicant have not submitted any sale deed or legal document by which it can be established the exact carpet area and consideration to be charged from the customers in case of Affordable Residential Apartment, other than residential Apartment and commercial shops which are shown in FORM-3. We have observed that clause (xvi) sub-clause (a)(ii) of paragraph 4 of notification No. 11/2017-CT(R) dated 28.06.2017 has explained the types of consideration ma....