Impact of GST on Co-operative Housing Societies Maintenance Dues / Corpus Fund / Common Area Expenses
Co-operative Housing Societies are merely a collecting and pass through mechanism like in case of property tax, water charges, common area repairs and maintenance etc. It can be contended that no activity is carried out by a society for its members. There may be various service providers providing service to the society which is the legal owner of the building including that of common areas, for e.g. repairs service providers, maintenance service providers, security agencies etc. Thus, the society is receiver of service and not provider of service. If a member’s flat or office premises require repairs, the same is obtained directly by the member and the society is not involved in provision of that service. Further no consideration is flowing from the members to the society except allocation and collection of expense. Any such payments without quid-pro-quo of a service cannot be liable to tax. Thus, it can be argued that even under the new dispensation, service tax is not applicable in case of a co-operative society when any activity is carried out for no consideration and the same would be continued under the GST Act.
Service tax on co-operative societies is a contentious issue. In a co-operative housing society, the land and building belongs to the society and the members by virtue of their membership of the society have right to occupy, enjoy and transfer their flats, subject to the prevailing rules and regulations and bye-laws of the society which are required to be approved by the specified authorities under the law. A co-operative housing society is a collective mechanism wherein it make payments of property tax and like payment to the municipal corporation and other Government bodies, incur some expense for common good and allocate and collect the expense in form of certain charges from the members on some basis or as per the resolutions passed in the General Body Meetings. Such collections are generally in the form of reimbursements. Some of the functions of a co-operative housing society are statutory functions like transfer of shares of the members with the underlined interest in the property (flats). It works on mutuality principles as the function of the society is for the members and by the members. Though it is not the objective, it is possible that at the end of a particular period, the society may generate some surplus which is used for members in future. In case of deficit, the same is made good by contributions from its members. However, such surplus or deficit cannot be said to be consideration for providing any service.
It is clear that a co-operative housing society collects the expenditure incurred either for some specific purpose like municipal taxes, water charges etc. on the basis of area of flats or some other appropriate basis. Such recoveries are in the nature of reimbursements. There is no element of service in case of “reimbursement of expense” and thus the charge (S. 66) fails as per the judgement of Hon’ble Delhi High Court in one of the case. If viewed in this context, service tax or GST on Co-operative Housing Societies cannot be applied on mere allocation / collection / reimbursement of expenditure. Some of the expenditures classified as follows are taxable under the current tax regime:
- Property Tax:
Collection of property tax is statutory levy by a municipal corporation or a local authority under the Constitution of India. A society is a mere collecting agent and pays the same to the authority. There is no element of service in it. Even assuming it as a service, it is not provided for a consideration. Hence service tax is not leviable. As an abundant caution, the society should ensure that the amount collected from the members does not exceed the actual amount. Same taxability would be continued under the GST Act.
- Maintenance and Repair Charges:
‘Maintenance’ as the name suggest is the amount collectively reimbursed to the society to upkeep and maintain the building and premises on regular basis. The members of the society pay maintenance charges on some predetermined basis as decided in the General Body Meeting. Electricity charges for common areas, watchman or security charges and other miscellaneous expenses incurred by the society including accounting, audit etc. is part of maintenance charges. Service tax may be applicable on this. If the actual service provider in relation to any input service, charges service tax in his bill, the society would be eligible to take CENVAT credit of the same and the same taxability would be continued under the GST Act.
- Parking Charges:
Car parking is in relation to regulate the parking place between the members and providing of space by use of vacant land belonging to the society for a consideration. There is an element of service in it and thus service tax may be leviable and the same taxability would be continued under the GST Act.
- Water Charges:
Water is “goods” under the Sales of Goods Act, 1935. However, the society is not selling the water to its members. It is just providing the pipeline to deliver water in the members’ premises. So long as it is collecting actual amounts as charged by the municipal corporation, there may not be any consideration. Therefore, charges recovered from members on actual basis are not liable to service tax. In the event of collection of water charges exceeding the payments, only such extra amount can be chargeable to service tax. In relation to water for common use like swimming pool, garden, club house etc., it is advisable to have separate meter and separate collection from the members. Such charges for use of water for common purpose may be liable to service tax and the same taxability would be continued under the GST Act.
- Charges for use of Club House, Swimming Pool, etc.:
These are specific services by the society to the member opting for such facilities. Any consideration paid for this would be liable to service tax and the same taxability would be continued under the GST Act.
- Share Transfer Fees and Donations:
Share transfer fees are the amount charged by the society for transfer of shares when a member approaches for its consent for transfer of his flat. It falls within the definition of service as a consideration for an activity carried out for the member for transfer of his lat. There is an element of service in it and service tax may be leviable on the same and the same taxability would be continued under the GST Act.
- Sinking Fund:
It is a fund which is collected by the members of the society to set aside money over a time of period to meet the eventuality of reconstruction of the building. It is obligatory for a housing society to collect Sinking Fund under the Maharashtra Co-operative Societies Act, 1960 and rules made thereunder. The fund collected from a member is transferred to new member if the original member ceases to be a member. No definite service or contractual obligation is involved so far as collection of sinking fund is concerned. It’s a mere collection from the members of the society.
- Repair Fund/Painting Fund:
Like sinking fund, this is also a mere collection to meet eventuality of major repair expenditure in future. There is no promise to provide a definite service with any identified time frame. No expense is also identified. It is also not sure that a member from whom the repair fund is collected would be a receiver of service at the time when it is actually provided. The agreement to provide service to the member is absent. However, as an abundant caution, the society should bring out this candidly in the resolution pertaining to collection of repair fund to avoid any ambiguity.
- Non Occupancy Charges
Non occupancy charges are charges levied by a housing society only when a flat or unit is let out by its members. A unit in a co-operative Housing Society is for occupation and enjoyment of its members. The permission of the society is necessary when the unit is let out. The society may accord its permission in accordance with the provision of its bye-laws and on payment of some periodical charge. Such charge is a consideration for agreeing to let out its premises and may be liable to service tax. Thus any consideration for allowing a member to let out his premises may be liable to service tax under the relevant clause of the Finance Act, 1994 and the same taxability would be continued under the GST Act.
In terms of above discussion, all the charges upon which service tax is leviable if it exceeds the limit of Rs. 5,000 p.m. per member in a housing society. If a person owns two flats, for all practical purpose it would be considered as two members. The exemption would be accordingly computed and then the remaining would be liable to service tax and the same taxability would be continued under the GST Act.
Rate of Tax and Exemption Benefit under GST
As per existing Tax structure currently service tax is charged @ 15% & whereas as per proposed GST tax @ 12% or 18% will be charged on Supply of Services but in existing tax structure assesses is not able to take the input tax credit benefit of goods & services whereas in proposed GST system assesses will be able to take credit of supply of both goods & services which will cover difference of additional 3% GST on Co-operative Housing Societies up to a level.
However, the exact rates applicable to particular goods and services have not been yet finalized for GST on Co-operative Housing Societies.
The exemption is in relation to certain amounts collected and certain services provided and so far as an co-operative housing society is concerned, the following exemptions are provided under the current tax structure:
- In case of a housing society or residential complex, the exemption is limited to 5,000 p.m. per member for sourcing of goods or services from a third person for the common use of its members.
Under the GST regime the above exemption would continue to be availed and the limit of Rs. 5,000 p.m. might be increased. However, the availability of exemption benefit and the limit of Rs. 5,000 p.m. have not been finalized yet.
Clarity over tax rates and exemption limits for GST on Co-operative Housing Societies will continue to evolve as the implementation date comes close.
Disclaimer: This information is offered as a public service. While we try to make it accurate as possible as on the date of publication, the laws change. We cannot promise that this information is always up-to-date and correct. We strongly recommend you to consult appropriate professional advisers to understand the actual impact for your society.