Namaskar, in today's Learn from Home on GST due to Coronavirus, in part 3, we will discuss GST on Joint Development Agreement. This is an area where we often face the question that the transactions between builders and developers and landlords So what will be the effect in it? So let's start with this This article I have made This with effect from 1.04.2019 That is, the transactions that will happen after 1st April 2019 This will be applicable on that only We are not discussing on the previous transactions So let's start with this Our Learn from Home Series Part 3 In this, in the beginning, what we have to see is the types of development agreement. In this, the joint development agreement has two parties. One is landlord and second is developer.
What effect will be there on both of these GSTs? We have to study about it. Then there are two types of GDA. One is revenue sharing and the other is area sharing. Revenue sharing means the sale out of the flats or shops that will be made The money that will be given to the landlord Or area sharing means if there is a project of 20 flats So 10 flats are to be given to the land owner 10 flats are to be kept by the builder So that is called area sharing Many times, partly revenue sharing and partly area sharing agreement can also be entered Now This joint development agreement is used to create two types of properties for development One is pure residential and the other is pure commercial Sometimes it can be that Partly commercial and partly residential properties can also be taken for development and this residential property will have two types apne ko divide karna padega ek hai affordable housing as per GST and non affordable housing as per GST toh chalo dosto dekhte hai joint development agreement kaise aage aasar karti hai GST me toh joint development agreement jo hai ye alag alag prakar se draft ki ja sakti hai and both the parties are this It can be used in area sharing mode, revenue sharing mode or in combination mode Section 7 of CGST Act is in GST The main section is related to scope of supply The term supply is defined here It includes barter, exchange of goods and services Services is defined as anything other than goods So, this joint development agreement can take the form of services in which the development rights of the land are being transferred.
So, entry no. 5 of Schedule 3 excludes sale of land from the scope of supply. But it became very clear that the notification came of 4th 2018 and there it was clarified transfer of development rights from landlord to the developer is taxable so now we will start with this these are all the factors which you have to keep in mind to determine the taxability of JDA first is revenue sharing or area sharing second is for commercial property or residential property If it is a residential property, then it is for affordable or non-affordable. So, all these matters should be seen in the JDA where we are going to check the applicability of GST.
So, to simplify this complex subject, we start working in FAQ format. So, let's start with our first question. What is our first question? What is the liability to pay tax on transfer of development rights fsi tdr by landlord landlord developer has to make an agreement with the developer for development then on that rights somewhere it is called FSI Floor Space Index it is also called transfer of development rights somewhere it is also called long term lease so what taxability will be in the hands of the landlord so GST is applicable on supply of development rights as a TDR FSI however The responsibility to pay tax is not on the landlord.
How does this happen? In this case, the tax on TDR has to be paid to the developer in reverse charge mechanism. And for this, you can also refer to this notification which I have given in this. 28th June 2017 Read with notification latest 29th March 2019 ka 5 number ka notification.
Doosra sawal. What is the rate of tax on TDR use for construction of residential project? Yeh bohot important hai.
For developer under reverse charge. To developer ko kaise tax bharna padega? The developer is TDR or FSIN is a project to make residential apartments or complex. In this case, if all the apartments, tenements or flats are booked before issuance of completion certificate or first occupancy, then it is exempt.
This is a very important thing. This means that if the project is completely booked before completion, no liability on the developer on TDR under reverse charge mechanism. So, keep in mind that if residential complex is being built, JDA is being entered and all the booking is done.
completion certificate before meeting the developer, when the project is completed, then no liability will come on the developer for this check the notification 41A let's see what is mean by affordable residential apartments these affordable residential apartments are linked to the carpet area not exceeding 60 square meter in metros and 90 square meter in the cities other than metros or important here the gross amount charge is not more than 45 lakhs rupees any residential project bandra hey If you are building an affordable apartment in that, then you have to take care of two things. Leaving the metro. so we need 90 sqm project and 45 lakhs for consideration now lets see what is mean by residential apartment residential apartment will be used for residents there is reference of RERA then when RERA or the competent authority grants permission, then residential apartments Now, the JDA is entered for residential apartments, but if both residential and commercial are being done in that project, then how? both are happening residential is also being built and commercial shops are also being built or offices are also being built so this residential project In which residential apartments are going to be built, the commercial area in it is not more than 15% of total carpet area of all the apartments in the real estate project shall be termed as a RREP. means real residential real estate project it will be and in this commercial percentage not more than 15% is required.
This means that commercial units which will be built in this residential apartment or complex they should be below 15% so the rate of tax for builder will be 5% Next, we will discuss about TDR use for construction. of residential project and if it is unsold in this because we saw that if the entire project is booked before completion then the developer does not have to fill in tdr on the rcm but If the developer is left unsolved, then what liability comes on the developer? So this is an important thing that we have to see.
So if the supply of TDR and FSI remains on the unsold, then what will happen? So in such case, tax. Such value which is proportionate to construction of a residential apartment that remain unsold on the date of issuance of completion certificate or first occupancy will attract GST at the rate of 14%-18% in the hands of developer. but there is a condition given in this.
However, please note that the amount of tax shall be limited to 1% for affordable and 5% for non-affordable of value of apartment depending upon whether the residential apartment for which TD or FSI are used in the affordable residential complex category or in the non-affordable category. So, it means that the proportionate stock left unsold, TDR value will be taxed 18% in reverse charge but this tax will not be more than 1% or 5% of total project value so we will see further how to calculate this with example then 7th question is what is the time of supply to developer to pay tax on reverse charge of TDR in case of unsold property so this developer has to pay tax in reverse charge attributable to the residential apartment which remains to be unbooked on the completion of certificate or occupancy whichever is earlier for this, you can see this press note so time of supply will be when completion is done Now we come down to the value of supply in case of TDR in such cases. How will the value of supply be calculated?
The value of TDR will be equal to the amount charged by the developer for similar apartments to the independent buyer booked on the date nearest to the date on which development rights or FSR are transferred by landlord to the promoter. This is an important aspect. The value of TDR will be calculated according to this.
the flat which is saved, if the nearest independent buyer is given that date of booking then the TDR will be given the liability of RCM now let's see what will happen if the developer has to sell residential flats after completion of the certificate so this is the main question developer has to pay RCM on the development rights which are unsold portion at the rate of 18% we know this but the liability of this tax should not be more than 1 or 5% of the project of flats so this means that the construction of residential apartments will remain unbooked so the tax that is coming on the developer if he wants to sell it so 1% non affordable and 1% affordable we will see this in simple example so that everyone can understand see carefully total project tot is 1.5 crore sale is complete, my 90 lakhs now tdr value of unsold stock is 60 lakhs so tax in rcm will be 18% on 60 lakhs so 10.8 lakhs but what is given in this condition that 5% total project is 1.5 crore if I put it in non-affordable then 5% if I take out the whole 1.5 crore then 7,50,000 comes so no tax payable on flat see in this case which is up to 7.5 lakhs in reverse charge tax on TDR will have to be paid and the remaining flats if the developer sells it later so the tax is not applied because of the removal property on it so to conclude, to simplify, let me tell you again that the tax is being applied on TDR value of 18% over 60 lakhs so that comes to 10.18 lakhs and on the whole project, on 5% to 1.5 crore, it comes to 7.5 lakhs so only up to 7.5 lakhs tax lagega reverse charge mein bache hue unsold stock ke TDR ke upar developer ko ap chalte hai next what is taxation of GST on developer on the sale of property before completion or occupancy certificate now we will see this according to builder if he is selling affordable housing then he will sell it with 1% because he will not get ITC he will sell it with 5% if there is non-affordable in it and commercial property which is not more than 15% so we have to keep these things in mind 29th March 2019 notification refer kar sakte hai next question apna aajata hai 11th number ka what is the rate of tax on developer where against the consideration of TDR use for construction of residential project constructed area is taken by the landlord upar wale chijho me revenue sharing dekh rehte hai ab isme constructed area liya hai What does it mean? If there are 20 total flats, then we have to give 10 flats to the developer and 10 flats to the landlord. So what will happen?
Developer will have to pay tax at the rate of 1% or 5% depending upon affordable and non-affordable type of property constructed, which is handed over to landlord against the constructed area as on date of allotment to the landlord. The value of supply is taken as per the nearest sale value by developer to the independent customer. Means if there are 20 flats, then we are giving 10 flats to the landlord.
So the value of the flat we will give to the landlord, we have to get it out. The remaining 10 flats of the builder, we have to get it out according to the value of the seller. and on top of that 1% and 5% tax has to be paid according to the developer's TDR according to the flats we have made on the constructed area on a proportionate basis but when?
when he will give the allotment to the landlord like I am selling to an independent buyer how I can construct that property I am giving to landlord, this is what builder has to pay tax Now what is the rate of tax of TDR used for construction of a commercial project Now we are moving towards commercial project Which is pure commercial, till now we have taken more questions on residential Now let's start commercial property If commercial property is being constructed If the place is taken for development So, the developer will have TDR on top of that. commercial apartments or property he is making then 18% tax has to be paid in RCM who has to pay? developer has to pay as on the date of agreement entered for this AAR can also be seen of Maharashtra State Vilas Gandhi which has come on 15th January 2020 one can refer that advance ruling then what is the time of supply? In this case, when the developer is filling in reverse charge in the property, then what time of supply will be left for the developer to pay tax on reverse charge on TDR used in case of a commercial property? The time of supply in case of a commercial property shall be the date when the agreement of transfer of development right is entered.
with the landlord means in the beginning the developer has to pay tax in reverse charge if he is making commercial property in that place above TDR then what is the time of supply to the developer to pay tax under reverse charge on TDR used partly used for commercial property if it is being used partly then what will happen further if the land is used partly for commercial project more than 15% of total area and partly for residential project so it is proposed that the land use of commercial area will be taxed on TDR in the beginning developer will have to fill in RCM and as far as commercial is concerned, we have already covered the above questions now What will be the value of supply in case of TDR on commercial property? The value of TDR shall be equal to the amount charged by the landlord on supply of TDR or open market value, which may be charged by the government while living. of stamp duty when the agreement of transfer of development right is entered in case of a commercial property so this is to be taken into account that the open market value of development rights has to be paid by the builder by 18 percent on the value of that. The tax on TDR is in reverse charge in the beginning. Now what is the rate for developer if the commercial property constructed which is sold before completion.
How will the developer sell the property? The developer has to pay tax of 18% and this tax is after deduction of land cost of 33% In short, 12% on the total value of the property The developer will pay tax on the commercial property and will collect the tax from the buyer No. The biggest question is, what about the ITC on developer which goods and services will be used before completion and occupancy certificate of a commercial property.
If there is residential property, then no ITC is available to the developer in case of tax paid at the rate mentioned therein. then above residential property it will get ITC No, on residential because on this it is paying 1% and 5% tax for this. If it is in commercial property, then in this case if it is above 15%, then it will get ITC. What is restriction developer on inward supplies on liability of RCM?
Now, this residential property is going in 1%-5% So, what is the restriction on that? 80% of inputs and input services i.e. capital, goods, TDR, FSI, premiums shall be purchased from the registered person otherwise, tax will have to be paid in reverse charge If any shortfall is left below 80%, then the builder has to pay 18% tax in reverse charge. And if cement is purchased by an unregistered person, then it has to be done by 28%.
And if he purchases capital goods, then it has to be done at an applicable rate. 1% and 5% of the residential project in this in this ITC will not be available but the builder will have to fulfill these conditions. What about ITC on commercial property constructed?
If he is making commercial property, there are inward supplies on it and the developer can avail whatever ITC is in it. He has to pay 18% tax on TDR. bags ITC will be given to the tax builder in reverse charge so this is an important thing that everyone should keep in mind that TDR of commercial property which tax builder will pay in reverse charge ITC will be given to him and he will be able to use it further what about ITC on commercial property which is unsold If you are making a commercial complex, if you are making 10 shops, what will happen if 2-3 shops remain? The builder will have to reverse whatever ITC he has taken proportionately at the end of the project on the unsold portion. Now we will ask a new question in this that the works contract is given to the contractor.
from the developer and if the apartment is of affordable housing then will it be taxed by 18% or 12% that means who did the landlord give the development to? to the developer who did the developer give the construction to? to the contractor so at what rate will the contractor tax? so the contractor will tax from 12% if the affordable apartments are being built less than 50% or not less than 50% means more than 50% residential apartment is made affordable type if less than this then it will cost 18% and whatever the charge check whether the conditions of affordable are being fulfilled or not if it is not fulfilled then what will happen in the end the developer himself the difference coming in reverse charge tax will have to be paid because 12% contractor has applied and actually payable 18% means what happened that whoever is the contractor that is making affordable building in the beginning in that 50% plus affordable apartment is there so 12% works contract will charge if that project is not like that affordable is reduced in it then tax will have to be paid in RCM to the builder So these were our many questions.
We have studied about the Joint Development Agreement and my disclaimer is that this is for guidance and if you want to give any suggestions or questions, then do send us and we will continue to study it because I have tried to take this topic in a simplified way. So keep watching Thank you.