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:
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.
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 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.
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 @ 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.
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.
Total Maintenance Recovery from members of the Society is less than 20 Lakhs per Annum.
RWA / Housing societies will need to charge 18% GST to its members if maintenance recovery is more than Rs.5,000/- per month per member AND if total maintenance recovery by the society exceeds Rs. 20 lakhs per annum. Accordingly, societies who fulfill either of the conditions will need to register under GST and charge 18% on their collections from Members from July 1st on wards. Please note that the Rs. 5,000/- per member per month exemption was available in the Service Tax regime as well and is being continued under GST regime.
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 and more importantly the way we interpret laws could also 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. We are not responsible for any actions or non-actions that are done by you based on the information present in this article or any other article on this blog.
Basic Introduction of GST and its Perspective as a Contractor and a Developer
GST (Goods and Services Tax) is one indirect tax for the whole nation, which is meant to be a unified indirect tax across the country on construction services and will make India one unified common market. The present structure of Indirect Taxes is very complex in India. There are so many types of taxes that are levied by the Central and State Governments on Goods & Services. It has been long pending issue to streamline and subsume all the different types of indirect taxes and implement a “single taxation” system called “GST”.
Implementing the GST will ease the compliance, uniform the tax rates and structures, remove the cascading effect of taxes levied by States & Centre, will improve the business competitiveness and will benefit everyone doing trade in some or the other form whether as a contractor or as a developer.
In the current system in India, tax is levied at each stage separately, by the Centre and the State, at varying rates i.e. 10.5% / 6% / 4.5% for service tax and different rates by different States, on the value of construction services. But under the GST system that is set to be introduced, tax will be levied only on the value added at each stage by the sub‐contractors, main contractors and developers or builders. It is a single tax collected at multiple value additions with a full set‐off for taxes paid earlier in the value chain by sub‐contractors and main contractors. It is pertinent to note that the inter credit of different taxes paid in the current regime be a service tax, VAT, CST, etc. to Centre or States are not allowed and thus becomes a part of the cost on the suppliers. Thus, under GST the final buyer / client will bear only the GST charged by the last person i.e. developer or builder or the contractor.
Structure of GST in India
In India, a dual GST is proposed whereby a Central Goods and Services Tax (CGST) and a State Goods and Services Tax (SGST) will be levied on the taxable value of every transaction of supply of goods and services.
The Dual GST is expected to be a simple and transparent tax with one or two CGST and SGST rates. The structure of the model law comprises of CGST Act, SGST Act and IGST Act. The dual GST model would give adequate flexibility to the States to levy taxes on a comprehensive base of goods and services at all points in the supply chain. Thus, financial liberty of the States would be maintained. GST is a consumption based tax. It is based on the “Destination principle”. GST is applied on goods and services at the place where actual consumption materializes.
The Centre and the States would have parallel jurisdiction for the entire value chain and for all taxpayers. The administration of GST under the three components will be as under:
Central GST (CGST) – to be levied on intra state trade and administered by the Centre
State GST (SGST) – to be levied on intra state trade and administered by the State Governments
Inter‐State GST (IGST) – to be levied on inter‐State trade and administered and collected by the Centre.
To the extent feasible, uniform procedure for collection of both Central GST and State GST is prescribed in the respective legislation for Central GST and State GST.
It can be noted that IGST will not be a Tax in addition to the SGST and CGST so one should not presume that IGST is a third tax but it is only a mechanism to monitor the interstate trade of Goods and services and further to ensure that the ultimate SGST is gone to the consumer state since the GST is a destination based tax.
Impact of GST on Co-operative Housing Society as well as Real Estate Sector
Implementation of the GST law will have a positive impact on the Co-operative Housing Society and on the real estate sector with expected reduction in its tax burden. The law will single‐handedly solve many of the challenges faced by the real estate sector. Heavy taxes that are being borne in a non‐transparent manner are expected to be very transparent in GST. It is unclear what would be the rate of GST applicable on construction services, hence it would be difficult to confirm the exact impact on GST on the Co-operative Housing Society. However going by the informal discussion, it is learnt that the rate is expected to be something between 18‐20%, which is what the current rate directly and indirectly being borne by the construction sector. Besides the simplicity in taxation, GST would bring in other advantages like transparency, seamless credits, ease of business by lack of border controls, promoting economic efficiency through a destination based taxation system. Overall Construction costs would be reduced to some extent which would benefit the end consumer. Apart from the advantages, the complexities in the compliance and assessments shall also be greatly reduced as the tax laws would also be unified.
There would be lesser burden of tax on purchases of major inputs like cement and steel, as tax credits would be available for set off at various stages which are currently restricted. The restrictions on credit utilization would be eliminated, thus strengthening the credit chain in the system. If this so happens, there will be increased credits available in the procurement chain and hence better utilization of input tax costs towards output GST Liability.
Since GST may be levied on a single value, the current issue of levying tax on tax (VAT on central excise duty) is likely to be removed. Hence the cascading effect of taxes shall be removed with the resulting transparency which will significantly reduce tax evasion through more efficient transaction‐tracking methods, and improved enforcement and compliance. Hence the implementation of GST will enhance the investment in Housing Societies & real estate sectors.
It is widely expected that GST would reduce the construction cost in the hands of developer and thereby aid in reducing or at least maintaining the current level of prices in the housing societies as well as in the real estate sector.