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service tax paid to builders for flat registration after introduction service tax paid to builders for flat registration after introduction

Tax »Posted 10 Aug 2018 Post Answer

legal question I had come to an agreement with a builder(developer) on 26.06.2017 for purchase of a ready built flat(completion certificate was done before my agreement) at a consideration price of Rs 30 lakhs. The registration of the flat was done on 01.09.2017 after full payment of consideration price. Besides the price the builder had charged Rs 1.35 lakhs as service tax before the registration..He has given the possession certificate after that but till date no receipt for service tax has been obtained.
My point of query is- Am I liable to pay service tax or GST as the flat was registered after introduction of GST.
2) Can I claim tax payment receipt from him for this amount.
A reply in the matter will be highly oblized.
p k pal

legal answer from lawyer E00291504you must claim service tax payment receipt and the builders is liable to pay the said receipt

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legal answer from lawyer E003014381) The Goods and Services Tax (GST) has replaced the earlier twin taxes of service tax and VAT (Value Added Tax) levied from the buyers of an under-construction property, The GST is applicable, when the complex, building or flat, is sold before its completion and the consideration, whether in full or in part, is received before its completion. Conversely, if the entire sale consideration is paid after the building is completed, there is no GST liability. The present law under the GST is the same as what existed prior to the introduction of GST, under the service tax regime.

In case part of the money is paid to the builder before the introduction of GST, you would have paid service tax at 4.50 per cent and VAT as applicable in your state, on such payments. However, the rate of 4.50 per cent service tax was under the composition scheme, under which the builders/ developers were not entitled to take any input credit on the materials and services used in the construction. So, the entire service tax and VAT was loaded or recovered from the customers. Hence, for under-construction flats booked prior to July 1, 2017, where the payments were made prior to the GST coming into force, the builder would have already recovered the service tax and VAT, applicable on such payments made. Even if the payment was not made prior to July 1, 2017, but the builder had already raised the invoice or demand, for either the full consideration or part of the balance amount, you would have paid the component of service tax and VAT on it, because as per the point of taxation rules 2011 applicable in case of service tax, the service tax is to be levied at the earlier of the two – the moment of payment or raising of invoice.

The rate of GST on an under-construction property is 18 per cent. However, one-thirds of the value of the consideration is presumed to be the value toward cost of the land, in cases where the interest in the land is also supposed to be transferred. So, effectively, the GST rate, in such cases, is 12 per cent, on the entire agreement value. Although the rate of 12 per cent on an under-construction property seems high, the effective cost to the consumer is supposed to be lower, due to various reasons. One of the reasons, is that this will replace various other taxes, including VAT, service tax, entry tax, etc. Secondly, the effect of all these taxes and higher rate of excise on materials and simultaneous levy of services, along with the fact that in the earlier regime of the composition scheme under service tax and VAT, no input credits were available to the builder, meant higher taxes. As the builders/ developers will be able to claim the benefit of input tax credits against the GST liability of 12 per cent, the net impact will probably be lower, under the present GST regime.

In cases where the ownership of land is not involved, the rate of GST applicable is 18 per cent, like in the cases where the builder outsources some of the construction activity to some other contractor.

So, for the balance consideration, which remained unpaid and for which the builder has not raised an invoice, the builder will recover the GST at the rate of 12 per cent on the balance amount due. According to the GST’s rules, the builder will be in a position to claim input credit on the materials and services used and should pass on the benefit of input credits to the flat buyers. Hence, the builders should not ask the flat buyers to pay the full 12 per cent, without taking into account the benefits under the GST. However, if a builder does so, the authorities can initiate punitive actions against such builder, under the anti-profiteering provisions of the GST laws.

In case the entire consideration has been paid before the introduction of GST, or if the invoice has been raised and it has been paid, you would have already paid service tax on the full value of the agreement. So, even if the construction is completed after the date of introduction of GST (i.e., June 30, 2017), you do not have any further tax liability under the GST law, as the GST substitutes the earlier service tax and VAT.

2) Yes you've the right to ask him receipts of such payments. (Invoices and receipts of such payments.) If doesn't need to send a legal notice.

Mr. Robert D Rozario (Advocate Calcutta High Court)

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