To WITHDRAW the GST applied on the co-operative housing soc. maintenance payments

As we know that 18% GST is made applicable on the maintenance payment made by very own members of the cooperative housing society to the same co-operative housing society managed by the same members themselves. I feel that this decision of the Government is not in line with the basic concept and principles of co-operative housing societies in India.

Hence, through this PIL, I appeal to Honorable Supreme Court of India to withdraw the GST (Goods and Service Tax ) applied by the Government of India on the Maintenance Payment made by very own members of the cooperative housing society to the same co-operative housing society managed by the same members of the housing society themselves. There are following valid questions to be considered before making GST applicable to the maintenance payment of the flats / house in Co-operative Housing societies:

1.   The Co-Operative Housing / Residential societies in India are maintained by the very own members of these co-operative societies. These members of the societies come forward voluntarily to serve themselves through their own services to their own flats / houses in the society. These members are neither paid any salary nor monitory benefits for their services provided by them to themselves in the co-operative societies. Meaning, members are providing their own services to themselves. So, if I am providing the service to me and that service is also consumed by me only, then why should I pay the GST tax on it to the Government for the same?

 

2.   The concept of co-operative for the housing societies is to manage the society by its members themselves, meaning there are no two distinct bodies i.e. Separate giver of services and separate receiver of the services do not exist in co-operative housing societies. It’s a one body like left leg supporting right leg and vice-versa to lift the entire load of the one body. Where is the concept of delivery of services within one body fit into this mechanism?

 

3.   Why the maintenance of the houses / flats in the co-operative societies is considered as a Business? Any logic behind it?

 

4.   We, as a resident members of the co-operative Housing society are already paying the Property Taxes on our house / flat to the Municipal Corporations, which is almost in the range of 20% to 100% of our annual maintenance. Then why are these property taxes levied on the flats if GST is also levied? Then withdraw property tax on flats.

 

5.   Co-operative societies being the end point of consumption of the material or services from the outside vendors, the materials and the services used by the co-operative societies from the outside agencies / vendors are already charged with GST and are paid by the co-operative societies and these vendors in tern pay these taxes to the Government. The final amount with GST is charged to the maintenance of the members flat within the society for such services obtained from outside. Where is the question of charging of GST to members’ come into this picture? Do the government expect us   again to charge GST of 18% on the same services to the members??

 

6.   When the members purchase the house / flat in the co-operative society, then they already pay or paid the following taxes/ duties to the State Government on the Agreement Purchase value of the flat/house in Pre-GST era.

1.   Stamp duty (6% in Maharashtra)

2.    Registration charges (Rs.30,000/-)

3.   Service tax (4 % in Maharashtra)

4.   VAT (1%).

The above taxes are almost amounting 12% of the Agreement Value. Means, State and Central Government has already earned their taxes through the purchase of the house.

The same is applicable for the purchase of the house after GST and the total taxes would be increased to huge amount of 18% GST on the Agreement / Purchase Value. We, as an individual members are paying 18% GST for the purchase of the house and we cannot claim any refund of the same.

Meaning, the State and Central Government has already earned their taxes, then why do Government want to put the GST (18%) on the maintenance of these property? What is the Government Role in maintaining these properties which are fully maintained and by the members themselves? Is government giving any insurance to these co-operative societies in return?

7.   GST is being charged on the Sinking Fund and Repair fund as well, it means more and more we save in the sinking fund for our own security of the house to re-build it in future in case of any calamities or in case of fire or in case of earthquake, we need to pay more and more taxes to government. Is government taking the responsibilities of the re-building of our houses / flats in the co-operative societies in case they are damaged, gutted in fire, or in earthquake or need to re-develop in future due to lack of original construction quality through the GST paid on these amounts??

 

 

 

8.   Moreover, most of the members of these co-operative societies are the tax payers i.e. they file their own returns on their taxable income every year. The net amount leftover after paying the direct tax on the income is used to take care of household expenses one of which is the payment of the maintenance of the house/flat in the society. Is government giving refund claims to the members for the GST paid on the house maintenance into their direct taxes??

 

 

9.   Why is the limit of GST applicability fixed to the maintenance amount of Rs.5000/- and above. What is the logic behind it?

 

10.       Why the limit of collection below 20 lacs per annum is fixed for this? Is maintaining the Co-operative societies considered as a Business?? We are not running the business of maintaining the houses / flats, we are maintaining the houses / flats on our own to live in the better condition same as we maintain our body to live in the good health condition with the co-operations of our own body parts. Why is the business approach forced on the working or maintaining of the co-operative societies by putting the collection limits of 20 lacs?

 

 

 

11.       By applying GST on co-operative societies, is government just  trying to make more money through the hard earned money of the citizens maintaining their own houses by their own in cooperative housing societies?

 

To my notice, the government has not considered most of the points listed above before applying the GST on maintenance payment made by members to co-operative housing societies managed by themselves. There is no valid logic to apply GST on maintenance payment by the members to the cooperative housing society.

Hence, I request and appeal to Honorable Supreme Court of India through this PUBLIC INTEREST LITIGATION (PIL) to consider to WITHDRAW the GST applied on the maintenance payment made by the very own members of the cooperative society to the same co-operative society managed by the  members of the same cooperative housing society themselves.

I request to provide the  stay on the applicability of GST on the Maintenance Payment of the Cooperative Housing societies till the final verdict from Supreme Court of India is given on this PIL.

 

This petition will be delivered to:

  • Chief Justice of India

Click Here to Support and sign the petition

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RERA – A Quick Overview

Here is a quick look at the salient features, chapter-wise, of the Real Estate (Regulation & Development) Act, 2016, known as RERA.


GST for Housing Societies Issues .& Challenges

Government of India is pushing for Implementation of GST on the 1″ of July 2017. In the latest GST Council .meeting held on the 3rd of June 2017, all the States have also agreed to the implementation date as it of July 2017.

Since GST deals with all sorts of goods and . services, manufacture, import, export, trade, etc. while addressing the requirements of the specific sector of Housing Societies , many practical issues arise and are not addressed properly.

This article is an attempt to understand these constraints.

1. Registration : Every Society with an aggregate turnover of over Rs 20 lakhs is required to be registered under GST. The aggregate turnover includes all maintenance charges (Other- than Municipal Tax), any miscellaneous income, and includes Bank interests.

Further, every society engaging an advocate or an advocate firm, needs, to register. under GST , even if the aggregate turnover, is less than Rs 20 lakhs, since Advocate Services is categorized under Reverse Charge.

While a simple window of  “Composite Levy” is available for Manufacturing/ Trading Sectors, the same is not available to Housing Society Sector.

2. Exemption: Payment of Municipal Tax may be considered as Payment on behalf of Member as an Agent, and maybe treated as outside the purview of GST and hence not taxable.

Water charges, may be treated as Supply of Goods, and hence attracts GST at “zero %” as per the GST Rate table.

Members in a GST Registered Society are exempted and will not be charged GST, if the maintenance charges on “Charges”/ Contributions” are less than Rs 5000 per month. Here, only ‘Charges for “Sourcing’ of goods or services from third party, for the common use” are to be considered. Thus, while ‘water charges, electricity charges, service charges, repair fund / maintenance charges, insurance premium, etc, are included while calculating the amount of Rs 5000/-, vehicle parking charges, non _occupancy charges, share transfer premium, hall booking charges and similar other charges are not included.

The challenge for a housing society is to identify the members for application of GST and also identification of billing heads for considering the limit of Rs 5000/-.

Also it is not clear whether for a member who is not in the exemption category, GST is to be charged on the amount exceeding this limit or for the entire amount. Going by Service Tax provisions, from which the exemption criteria is picked, GST is to be applied on the entire amount and not on the amount exceeding Rs 5000/-.

3. Invoicing : GST provisions require that Taxable and Exempt amounts must not be included in the same invoice. For Taxable amounts, tax invoice has to be issued, and for exempt amounts, bill of supply has to be issued.

4. Arrears : Even if a member has not made the payment, the GST charged to the member must be paid. Interest on arrears also attracts GST. Even this has to be paid once interest bill is raised on the member. Arrears problem itself is a challenge to Housing Societies.

5. Advances : GST has to be paid on the Advance Maintenance Charges Received; and adjusted against the invoice. when raised later. To distinguish the Advance against Taxable and Non taxable amount, and to calculate the GST on the same, keep a track of the same month after month is again a challenge.

6. Reverse Charge:  On certain services, in particular for Services by an Advocate, GST will not be charged by the Supplier, But the GST has to be calculated and paid to the Govt. by the Society. Similarly, if the Society is procuring Services from any Unregistered Vendor, [ which is very common for Housing Societies], GST has to be calculated and paid by the Society. The GST rate may change from Vendor to Vendor depending on the kind of Supply [ service or Goods] , and its category. Again , since the invoice does not reveal the GST rate, it is again a challenge to know the GST rate for each category and pay.

7. Input Tax Credit : The Societies are allowed to avail Input Credits on GST paid by them to the various Vendors or through Reverse Charge. [ In case of Reverse Charge, the credit is available only in the month next in which GST is-paid: ] . Again, if the Vendor has not made the payment of the GST before the due date, the ITC availed by the Society will be reversed by the GSTN

Input Tax on Capital Goods [Fixed Assets] is adjustable over a period of five years. To keep a track of this is a challenge.

If the Society has all its members under the exempt category, then the entire ITC, that are
attributable to exempt services will not be available. If the Society does not have any member under the exempt category, all the input Tax is available is ITC. However, where there is a mix of these two kinds,-the situation becomes challenging. Only proportionate Input Tax is available. for ITC. This proportion is required to be calculated every month and applied accordingly

8.Accounting: Most of the Accountants book expenditure directly without creating any vendor. Under GST, every Invoice has to be booked first, and then payment made against this invoice is required to be accounted: The Voucher posting work of the Accountant increases almost three fold.

9 Rectification of the Accounting Entries: Since all the rectifications in accounting entries.made are ‘required to be reported in subsequent Reports, of GST, one has to keep a track of the rectifications done.

10. GSTN : All GST related issues [Reports and Payments] are handled through an online application GSTN. For making payments, one has to download a challan and make the payment online or through any authroised Bank. Many Societies do not even have Computers and transactions online itself becomes a Challenge.

11 Reports : This becomes the most challenging part. Most of the Societies do not have any full time Accountant. But the requirement of Reports is very much time bound. GSTR -1 is required to he filed on or before 10th of each month. GSTR-2 is required to be filed on or before 15th of each month, Between 15th and 17th of each month, one has to tally the GSTR- 1 of the input Supplier with our GSTR-2 , and ensure that the two match each other By 20th one has to pay the Tax, and Submit the Tax return in GSTR- 3.

In addition, there will be GSTR- 9 , an Annual Return and GSTR – 9B [ GSTR Audit Report, if the aggregate turnover, exceeds Rs 1 Cr ] to be filed on .or before 31st of December. This will reconcile the GST-payments vis-a-vis the audited statement of accounts, of the Society.

The compliance requirement of GST is very high. For very big societies, the cost increase is shared by a larger number of members. But for smaller societies, the cost increase becomes a very high burden on,the members. But this should not be a reason for not complying with the GST requirements. Since the invoices raised by Registered Suppliers on Unregistered persons are all uploaded in the GSTN, the chances of getting detected, if not Registered, is very high. While interest and penalty will be charged on the detected evaded tax, input Tax credit, including the One on Reverse Tax basis, which May be a very huge, will not be available.

ABOUT THE AUTHOR – Mohanraj Yenagudde is a the Director of a Leading Company providing Billing / Accounts / Management / Consultancy and _Compliance Services under the name Society123 Support Services Pvt Ltd (Formerly Pangal Computer Services Pvt Ltd) to Housing Societies. for the last thirty years. Ph:- 9820090808 email : Mohanraj@society123.com

Courtesy : MSWA’s Housing Societies Review – August 2017


GST & Housing Society’s Accounting

Dear Office Bearers of the Society, are you done with your society audit? Has the ever-busy auditor finally found time for you? Are the books already presented before the AGM? Have you done with nit-picking by every smart member who wants to check why these 25 Rs. are spent extra or why is there an Interest Rate difference of 0.02%? Do not rest yet… a new animal is just unleashed upon you, Goods and Service Tax, i.e. GST…! Lot has been said/published and generally disseminated as to how GST functions. We all know that GST facilitates better ‘Input Credit’ and as such, overall tax liability is less. Further, GST is of course, not a One Tax but a group of taxes which work on similar line. The Head of the Family is Central Goods & Service Tax Act (CGST) and we’ll refer it henceforth for the simplicity. So, the very first thing to note is CGST is applicable on all the Persons u/s 2(84) and sub clause (i)
specifically includes Co-operative Societies of all types. But wait, it’s not enough to be ‘Person’, but Section 9 says that every ‘Taxable Person’ has to collect and pay GST. So the question is, is your society a Taxable Person? And the definition of Taxable person u/s 2(107) says that if you are required to take Registration, either u/s 22 or 24 then you are taxable person (Isn’t Law a Treasure Hunt of the Sections? Welcome to maze…!) This brings us to an important question. Who should take Registration u/s 22? Though there are several thing about this section, let’s stick to those relevant to the Housing Cooperative. Section 22 spells out that you are required to take the Registration, if the aggregate turnover in a financial year exceeds twenty lakh rupees. What should be taken as Turnover? Now those charges for which services are not provided by the Society, such as Water charges or other such public utilities and property tax, are not part of turnover. Hence, it is better for the society to issue a separate reimbursement bill for these services, charging each member at proportionate actuals. However, the maintenance charges and the charges for all other facilities which the society levies on its members are very much part of the society’s turnover and this is even reinforced by the definition of business u/s  2(17)(e) that it includes provision by a club, association, society, or any such body (for subscription or any other consideration) of the facilities or benefits to its members. Thus, are the aggregate charges received by your society more than 20 Lakhs? Welcome to GST…

Now that if you have to take registration, next question is what is the rate of tax? Under the heading 9995 — Services of Membership Organization, it is 18%, approximately 2.5% more than what you were earlier required to pay under Service Tax.

But there is good news as well.

Your society buys several products and utilises several services in course of ensuring welfare of its members. In that process, it used to pay different types of Sales Taxes and Excise etc., though only some of the Sales Taxes were visible on the bill. Now, your society shall pay GST to suppliers of goods as well as services and only the balance amount to Government. This will reduce over all tax liability for many societies, especially the bigger ones.

But wait, what happened to that other section for registration, section 24? To understand it, we first have to follow something called ‘Reverse Charge Mechanism’ – RCM. Now when Society collects Maintenance Charges from the Members, it collects GST on it and pays to Government. When it buys Goods or Service from Registered Dealer, it pays the GST to supplier. BUT, when it buys them from Unregistered Dealer, under RCM, it will have to pay the GST on those goods/services out of its own pocket to government and can, of course, claim credit of it. Thus, this is not necessarily a big burden on society. The sting is in the second part of RCM. There are certain Services, for which, it is the responsibility of buyer to apply RCM, collect GST and pay it to the government, e.g. Legal Services for Business Entity. Now, section 24 says that you have to take registration if RCM is applicable to you and the turnover limit is not required to be fulfilled! Thus, even a small society with lower turnover, availing these services, shall he required to register.

There is an important reprieve, maintenance charges are less than Rs. 5,000 per member per month, then the GST rate applicable is 0%. In short, you have to take registration but not charge the GST. But whether GST liability is there or not, Now once registered, the clumsy and time-consuming Statement updating is mandatory. Thus, every registered society shall be required to upload three statements a month and one annual statement.

There is one more serious issue, which is a problem for Housing Societies. U/s 12 of the Act, GST would be charged on the date of issue: of invoice by the supplier or the last date on which he is required. Thus, even where the member defaults on payment of the charges, liability to pay GST would arise immediately in the next month. This will be financially burdensome for co-operative housing societies, which have working capital troubles. This may even increase the friction in the society, since timely collection of dues would become a crucial matter.

RCM, Time of Supply and cumbersome return filing are grave issues and they are hitting every single organization, especially of smaller size, in a big way. It is expected that the Government, in its infinite wisdom, shall soon take cognizance of it and rectify some of the anomalous provisions. Meanwhile, it is important for all those covered under this Act, to register themselves as soon as possible for GST. Ultimately, this is a new regime, introduced somewhat hurriedly and unprepared, by the government, intent to go for an important Tax Reform. The baby is delivered under C-Section surgery and we all shall have to bear the pains of its birth for a while to come. Over a period, this New Baby of Emerging India shall find its feet and strengthen us all, is definitely a Hope…!

CA Ajit Joshi, Author, is a practicing Chartered Accountant, also teaching at PTVA’s IM as Assistant Professor. He can he reached at meeajit@gmail.com or 9869424479.

THE HOUSING TIMES – July-2017


How To Complain Against Builder Under RERA

By Dr Sanjay Chaturvedi, LLB, PhD

RERA – The Real Estate Regulatory and Development Act 2016 came into force on the 1st of May 2017. With the aim to regulate the sector and bring clarity in the real estate market and the act is a key reform measure in the vast real estate sector. The Act mainly enacted to protect real estate buyers and enhance transparency.

The first question before you plan a complaint with RERA authorities in India is weather it is registered with the state authorities or not. The question is which are the projects needs to qualify for registration.

  • In accordance with the Section 3(1) the RERA Act aims at demanding  the promoters  to  register each of their real estate projects be it commercial or residential with the RERA authority and thus barring the developers from advertising  or offering for sale or inviting any such proposal for sale of  any project before such registration. With an exception that such builder shouldn’t have received the completion certificate of the project so advertised. If you think and have proof that your builder have advertised in Print, Digital, Social Media, Hoardings, out door media, calls, messages, email or any thing which you can prove on paper.
    Mind you, if the project is falling between Commencement Certificate and Occupation Certificate (OC) by whatever name called on 1st May 2017 then the project must be registered with State RERA concerned. By no means, the date was extended and it is statutory obligation of the builder to register the project.
  • Section4 (2)(c-f) has provisions for the promoters to provide all necessary and important information relating to the project- sanctioned plan, allotment letter, and the appropriate specifications of the proposed project along with the authenticated approvals and the commencement certificate thus imparting important information of the project to the consumers. Make sure you see that Plan he has uploaded matches with the plan you got in your agreement for sale. If there are deviations then you qualify for complain. Also, builder has to take NOC from 2/3rd buyers at whatever stage the project is.
  • With respect to the consumers interest the builder as mentioned in Section4 also has to provide the carpet area for each unit, the verandah or balconies if any, the garages or parking as to be provided to the consumers promoting transparency for the consumers and to gain access to all necessary information before investing their capital in the project. The carpet area must be as per the definition of RERA Act. It says inner surface of the wall to inner surface of the wall and space below internal wall. It varies from state to state as to the definition includes inner column. The Architect certificate uploaded must be seen.
  • The provisions as mentioned in Section11 (4) holds the promoter responsible for the obligations, and all the promises made to the allottees and thus assuring the consumers against unfair trade practices of the builders. Keep all the statement made by the builder to you either in written, expression and oral.
  • The Act in section 11 provides for the builders being responsible for the repair work of all the structural defects or any such defect that may arise in a period of 5 years from the date of conveyance of all flats in the particular project. Many developers have put conditions in agreement for sale that if without written permission you are not allowed to do any repair. Also a usual wear and tear conditions are imposed. But nothing will stand against this provisions. Builder has to obey the section and give repair to default in workmanship and for every successive occupant within five years.
  • Section 14(2)(i) of the Act prohibits the developers from making any alterations or modifications in the approved plans , fixtures, fittings or amenities of a proposed project without the mutual consent of the allottees, so as to safeguard the interest of the consumers unfamiliar to such alteration. It requires 2/3rd member NOC to do so.
  • The aim of the act is to ensure that the allottees are provided with their respective units according to the stipulated time as provided by the developer at the time of the registration, failure of which penalizes the promoter under Section 18 to compensate such allottee for the delay in possession of such property. Almost every developer took the liberty to raise possession date by four to five years. But if ou have entered into agreement and the date is given then you can always go to court for recourse irrespective of date filled by builder at the time of Registration.
  • Section 19 (4) entitles the consumer to claim refund of the amount of the property along with the interest from the promoter, if the promoter fails to comply or is unable to give possession of the apartment, plot or building, as the case may be, in accordance with the terms of agreement for sale or due to discontinuance of his business as a developer on account of suspension or revocation of his registration under the provisions of this Act, thus securing the capital funds of the allottees who invested in the project.
  • The Act provides for establishment of an authority to be known as Real Estate Regulatory Authority under Section 20 for the effective functioning of the provisions of the act and also securing the interests of the buyers against the ill fitted plans and intentions of the project builders. The authority is having cosi judicial powers to make any arrangement to complete the project and charge penalties.
  • The provisions in S.29 empowers the aggrieved allottees to file a complaint against a developer to the authority, thus enabling the authority to deal with such a subject of protection of a consumer expeditiously and ensuring the disposal of such complaints within sixty days from the date of filing of the complaint with the appropriate authority. In Maharashtra, its online with a fees of Rs5000/- and in other states, the fees varies and sometime off line.
  • The Authority under the act has been vested with the functions of promoting consumer protection under Section 43 which enables the appropriate Government for the formation of a Real Estate Appellate Tribunal for the quick redressal of grievances of the consumers, which also provides of the disposal of cases within sixty days of such filing.
  • Section 59 & Section 60 of the Act provides for the penalty of the developers for contravening the provisions of the act, thus keeping in mind to create a consumer friendly real estate sector.
  • Section 59- Penalizes the promoter to pay up to 10% of the project cost for non-registration their project with the RERA Authority.
  • Section 60 – proscribes that the developer pays 5% for violating the provisions of the act and providing false information to the consumers.

In fact, the preamble of RERA says that the Act is enacted to established RERA Authority in every state and to enhance transparency in real estate transactions and development process.

http://accommodationtimes.com/how-to-complain-against-builder-under-rera/


Real Estate Regulation and Development Act 2016

by Adv. Vinod C. Sampat, Sampat Law Firm
Government of India has enacted the Real Estate (Regulation and Development) Act 2016 and all the sections of the Act shall come into force with effect from May 1, 2017. Under this Act, Government of Maharashtra established Maharashtra Real Estate Regulatory Authority (MahaRERA), vide Notification No. 23 dated 8 March 2017, for regulation and promotion of real estate sector in the State of Maharashtra.
edit by kishor kanade