In the previous update we canvassed the taxability of joint development agreements under GST Regime. Through this update we would like to enumerate the provisions concerning the time of supply and the valuation of service in respect to the joint development agreements. It is pertinent to mention that there is no express provision as regards joint development agreements. Consequently, the time of supply will be ascertained on the basis of most appropriate clause. As per section 12(2) of the CGST Act, 2017, the time of supply of goods shall be the earlier of the following:-
- Date of issue of invoice by the supplier or the last date on which he is required to issue of invoice for supply, or • Date on which the supplier receives payment with respect to the supply.
As no invoice is issued by the developer to the land owner, and it is also obvious that the development rights are transferred to the developer before the developer starts construction, it can be inferred that the consideration is received by the developer in kind even before commencement of construction. Consequently, one may opine that developer is required to pay GST on the flats agreed to be given to the land owner even prior to commencement of construction which will prove to be a great hardship for the developers. Now, comes the valuation aspect, which is given under section 15 of the CGST Act, 2017 read with Rule 27 to 35 of CGST Rules, 2017. It is pertinent to mention that there is no explicit provision as regards the valuation of flats given to land owner under joint development agreement. Consequently, the most appropriate Rule is to be applied. Rule 27 of the CGST Rules, 2017 states that where the value of supply of goods or services is for a consideration not wholly in money, the value of supply shall be the open market value of such supply. If the open market value is not available, it will be determined as total consideration received in money or its equivalent. If value cannot be determined by this formulae, it will be the value of supply of like goods/services. As per the above provisions, the value of flats given to land owner shall be open market value being the value of flats on the date of transfer of joint development rights. Say for example, on the date of transfer of joint development rights, developer sold 10 flats at the rate of Rs. 30,00,000/- then the value of flats to be given to the land owner will be valued at Rs. 30,00,000/-.
However, if the open market value is not available, the value of flats shall be the value of flats of like kind and quality at about the same time. Say for example, the value of flat in the region of the same specification is 32,00,000/- then the value of flats given to land owner will be valued at Rs. 32,00,000/-. If we compare the provisions of valuation of the flats given to the land owner under joint development agreements in the service tax laws, it is found that the provision is similar to the present regime. Under Service Tax Laws, as per circular no. 151/2/2012-ST dated 10.02.2017, the valuation of flats given to land owner shall be equal to the value of similar flats charged by the developer from prospective buyers of flats and this concept is similar to the concept of open market value. Furthermore, CBEC Instruction No. 354/311/2015-TRU dated 20.01.2016 states that for valuation of flats given to land owner, clarification of education guide that valuation shall be the value of land on date of transfer to the developer is not proper. The instruction states that for the purpose of valuation of flats given to land owner, provisions of Circular No. 151/2/2012-ST dated 10.02.2017 would prevail. Hence, under the GST regime, similar provision is continued with the exception that the time of supply arrives at the date of transfer of development rights to the developer by the land owner. This will be great hardship to the developer as entire GST would be payable in the beginning as against payment of tax on periodical basis. Further, the builder is liable to pay GST on the owner’s share of the flats/houses/portion of the building constructed by the builder/developer and given to the land owner as per the development agreement. The issue to be dealt here is what shall be the taxable value. As per decisions taken in 14th Meeting of the GST Council held on May 18-19, 2017 in Srinagar, J&K; 18 sectoral groups have been constituted representing various sectors of the economy in order to ensure smooth roll-out of GST. One such sectoral group is “MEDIA & ENTERTAINMENT SECTORAL GROUP” which has issued some FAQs on GST in respect of Construction of Residential Complex by Builders/Developers. In these FAQs, following clarification has been given in respect of land owner’s share of the flats/houses through FAQs:-
GST is liable to be paid by the builder/developer on the share of the land owner, also. GST is liable to be paid when the possession or right in the property of the said flats are transferred to the land owner by entering into a ‘conveyance deed’ or similar instrument (e.g. allotment letter).
The value of the flats/portion of the building? supplied to the land owner by the developer/builder has to be determined under the provisions of Section 15 of the CGST Act, 2017 read with Rules governing Valuation as envisaged under Rules 27 to 35 of the CGST Rules, 2017.
In terms of Rule 27 of CGST Rules, 2017, where the supply of goods or services is for a
consideration not wholly in money, the value of the supply shall:
(a) be the open market value of such supply;
(b) if the open market value is not available under clause (a), be the sum total of consideration in money and any such further amount in money as is equivalent to the consideration not in money, if such amount is known at the time of supply; (c) if the value of supply is not determinable under clause (a) or clause (b), be the value of supply of goods or services or both of like kind and quality; In view of the above provisions, the value of supply of those flats would be equal to the value of similar flats charged by the builder/developer from the buyers of his share of flats. In case the prices of flats/houses undergo a change over the period of sale (from the first sale of flat/house in the residential complex to the last sale of the flat/house), the value of similar flats as are sold nearer to the date on which land is being made available for construction should be used for arriving at the value for the purpose of tax.” Therefore, the above clarification given by the media and entertainment sectoral group are of great help in determining the taxability of flats sold to land owner. Though these FAQs don’t have any legal binding, yet since there is no clarification on these points, these FAQs will act as guiding factor to the assessees.
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