Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *   CBIC issues draft rules for Customs valuation *  Top Headlines: Threshold for Benami deals, green bond investors, and more *  Govt aims 1-hour clearance for goods at all ports *  Exporters Allowed To Use RoDTEP, RoSCTL Scrips To Pay Customs Duty, Transfer Them; Rules Amended *  Millions of labourers to be affected by brick producers’ strike over hike in GST, coal rates *  Inauguration of ‘kendriya GST parisar’ *  Transporter can seek Release of Conveyance alone, not Goods under GST Act: Madras HC *  GST: Quoting of DIN Mandatory for Responding to Notice, Govt Modifies Portal *  Firms can soon file claims for GST credits of ?400 cr *  CBIC issues modalities for filing transitional credit under GST. *  Mumbai: Man creates 36 fake GST firms, arrested for input tax credit fraud of Rs 23 cr *  Report to restructure Commerce Ministry under study; idea is to set up trade promotion body: Goyal *  Firms can soon file claims for GST credits of ?400 cr *  Gambling Alert! Govt May Levy Up To 28% GST; UP, Bengal Back Move *  EPFO backs raising retirement age to ease pressure on pension funds *  India Moving Up Power Scale, Set to Become Third Largest Economy By 2030 *  Airfares Get Expensive: What Changes for Flyers From Today? *  IRCTC Latest News: Passengers to Pay More For Cancelling Confirmed Rail Tickets Soon. *  IBC prevails over Customs Act, says Supreme Court. *  As GST enters sixth year, a time for evaluation and reassessment *  There’s GST on daily essentials as Centre needs money to buy MLAs: Arvind Kejriwal *  Now, GST on cancellation of confirmed train tickets, hotel bookings *  GST kitty for top States could rise 20% in FY23, says Crisil *  French customs officials seize another cargo vessel over Russia sanctions *  TradeLens builds on Asia momentum with Pakistan Customs deal *  Hike tax on tobacco, reduce affordability & increase revenue: Civil society organizations to GST council *  Bihar: ?10 crore tax evasion on tobacco products detected in raids *  Centre failed on GST, COVID; would it be anti-national? Rajan on Infosys row *  Service Tax not Chargeable on Income Tax TDS portion paid by recipient: CESTAT grants relief to TVS *  Foreign portfolio investors make net investment of Rs 7575cr in Sep so far
Subject News *  Run-up to Budget: Monetary threshold for GST offences may rise to Rs 25 cr *   GST (Tax) E-invoice Must For Businesses With Over Rs 5 Crore Annual Turnover *   Both Central GST and excise duty can be imposed on tobacco, rules Karnataka high court *   CBIC Issues Clarification On Extended Timelines For GST Compliance *   CBIC Issues Clarification On Extended Timelines For GST Compliance *  Budget 2023- 9.6 crore gas connections *  GST: Tamil Nadu Issues Instructions for Assessment and Adjudication Proceedings *  GST: CBIC Extends Last Date for filing of ITC *  GST collection in September surpasses Rs 1.4 lakh crore for straight seventh time *  Dollar smuggling case: Customs chargesheet names M Sivasankar as key conspirator. *  Hike in GST rates fuels inflation *  Assam: CBI arrests GST commissioner in Guwahati *  GST fraud worth ?824cr by 15 insurance Cos detected *  India proposes 15% customs duties on 22 items imported from UK *  Decriminalising certain offences under GST on cards *  Surge in GST collections more due to higher inflation: India Ratings *  MNRE Notifies BCD and Hike in GST Rates as ‘Change in Law’ Events But With a Condition | Mercom India *   Solar projects awarded before customs duty change allowed cost pass-through *  Rajasthan High Court Dismisses Writ Petitions Challenging Levy Of GST On Royalty *   GST revenue in September likely at Rs 1.45 lakh crore *  Govt working on decriminalising certain offences under GST, lower compounding charge *  Building an institution like GST Council takes time, trashing is easy: Sitharaman *  GST collections in Sept may touch ?1.5 lakh crore *  KTR asks Centre to withdraw GST on handlooms *  After Gameskraft, More Online Gaming Startups To Receive GST Tax Claims *  Madras HC: AAR Application Filed Under VAT Does Not Survive After GST Enactment *  Threshold for criminal offences under GST law may be raised *  Bengaluru: Gaming company faces biggest GST notice of Rs 21,000 crore *  CBIC clarifies Classification of Cranes for GST, Customs Duty *  Customs seize gold hidden in bicycle in Kerala airport  

Comments

Print   |    |  Comment

GST UPDATE REGARDING APPLICABILITY OF GST ON LONG TERM LEASE 46/2020-21

GST UPDATE REGARDING APPLICABILITY OF GST ON LONG TERM LEASE 46/2020-21
 
 
GST UPDATE REGARDING APPLICABILITY OF GST ON LONG TERM LEASE:-
 
The issue regarding GST applicability on lease transactions has been an issue of disagreement by the taxpayer as the law does not seeks to distinguish between the long term lease such as that of 99 years which actually has the character of “sale”. The definition of supply under section 7 of the CGST Act, 2017 includesall forms of supply of goods or services or both such as sale, transfer, barter, exchange, licence, rental, lease or disposal made or agreed to be made for a consideration by a person in the course of furtherance of business. Consequently, the activity of lease is specifically included in the meaning of supply and is liable to GST. Now, the question arises is whether the transaction of long term lease, granted for 99 years is liable to GST or not? This issue was considered by the Rajasthan Authority for Advance Ruling in the case of M/s GREENTECH MEGA FOOD PARK PVT. LTD. and is the subject matter of discussion in the present update.
 
The Ministry of Food Processing Industries, Government of India (MOFPI) has granted approval to the applicant company to set up a Mega Food Park. As part of the development or setting up of the Food Park, the applicant company has identified/developed certain individual plots on the project site for the purpose of transferring the plots for a lease of 99 years and setting up of industrial units in accordance with the Scheme Guidelines. The applicant company wishes to enter into agreements with several lessees for a total period of 99 years for separate industrial units situated in Mega Food Park for a consideration towards booking and allotment of developed plot. The question placed before the AAR was whether lease agreement between the applicant company and the lessee for a period of 99 years is a sale of immovable property and is exempt from levy of GST?
 
The AAR referred to entry no. 2(b) of Schedule II wherein it is stated that any lease or letting out of the building including commercial, industrial or residential complex for business or commerce, either wholly or partly, is a supply of services. Since the meaning of lease was not given in CGST Act, 2017, reference was made to Transfer of Property Act, 1992 and it was concluded that the quantum of time for which lease is granted has no relevance and even perpetuity lease such as lease of 99 years is liable to GST. Reliance was also placed on Hon’ble Mumbai High Court decision in the case of BUILDERS ASSOCIATION OF INDIA VERSUS UNION OF INDIA wherein long term lease of 60 years was held liable to GST. It was also held that from the lease agreement, lessee has many restrictions as regards further sale of allotted plot whereas in case of transaction of sale, the sale deed purchaser becomes the absolute owner of the plot and is not dependent on the lessor for renewal or extension of the lease period. It was also held that merely charging stamp duty will not change transaction of lease to sales. As the activity of leasing of land by government, local authority or governmental authority or government entity is only exempt, the present transaction is liable to GST at the rate of 18%.
 
The dispute regarding liability of service tax on long term lease stems from erstwhile taxation regime and it has been consistently held that the period of lease does not lead to considering the transaction of lease as that of sales so as to exempt it from levy of service tax. Similar view is being taken in the GST era also and so the activity of leasing land by any assessee other than government is liable to GST even if the lease is for a period as long as 99 years.

However, it was basic intention of GST that transfer of immovable property was outside the net of GST as stamp duty is paid on the same. It comes under the preview of state Government. But now both the taxes are being charged on such lease of 99 years. It is very cumbersome position. Unless and until, these all laws are merged and only GST is applicable, there will be no immunity to poor assessee. 
 
This is solely for educational purpose.
 
You can reach us at www.capradeepjain.com, at our facebook page on https://www.facebook.com/GSTTODAYBYPRADEEPJAIN/as well as follow us on twitter at https://www.twitter.com/@capradeepjain21.
Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com