• Development Agreement, GST liability of landowner and ongoing case in RERA

Respected Sir, 
My name is Prince Raj and i am a resident of Ranchi, Jharkhand. I am a businessman and also a lawyer and I manage work and business of my father’s company Ekta Contech Private Limited. I have experience in both these fields and I like to use my legal skills to do better in business.
Dear sir I am stuck in middle of situation related to GST, I tried to read the law also consulted a few Charted Accountants and also consulted lawyers who are expert in taxation law but still I am stuck in this situation as everyone had different answers and solutions, so I felt the best way to figure out a way out of this situation is to contact someone who has expertise in GST and then people suggested your name to me.
Scenario: We have made a building in Ranchi and we started the work in December 2017 and ended on January 2021. When the government have option on to choose a category to opt and accept laws that was as per GST before 1st April 2019 or to choose the new laws. So we opted the first option and accepted the norms which were valid before 1st April 2019. We did this project on ‘development agreement’ basis where we agreed to do the construction of this project on a land of landowners, we both agreed that the consideration against the construction of the building we be getting the ownership of a part of building and the landowners will have ownership of a part of constructed building, and in our agreement it was clearly mentioned that we both will pay all kind of tax of of our parts and agreed that liability of paying tax should not be transferred to other party. 
Problem: after completion of our project it was time for the handover of flats to our clients and to our landowners. We discussed this handover situation with our Chartered Accountant to make sure that we don’t have anything else to ask or to give to our clients and landowners, that’s when our CA asked us to collect gst from landowners after calculating the amount as per GST norms for their part of property. (I will later share copy of the norms in GST which he used to calculate and get the final amount), and our Chartered Accountant also informed us that if we handover and give possession letter to our landowners without collecting GST from them, then we will be liable to pay the tax amount which was to be paid by landowners, so we demanded our landowners to pay the total GST amount only then we can handover the flats to them, but they denied to pay tax. The reason for which he denied to pay the GST amount was that he said there is no law that landowners will have to pay gst. And landowners have filed a case in RERA and as the case has been going for a few hearings I strongly feel that RERA will be ordering us to handover the possession as the honourable judge during the hearings a few times said us to handover possession to landowners and then file civil suit or file case in GST court to get the matter resolved.
Asked 3 years ago in Property Law
Religion: Hindu

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6 Answers

After the implementation of GST to sort out the doubts real estate sector regarding the applicability of GST on Joint Development Agreement (JDA) the Government has prescribed some provision regarding this through a notification on the said matter. 

At the point when a developer comes into contract with the landowner using Joint Development Agreement (JDA), GST will be payable by the owner of the land at the time when the developer transfers back the rights or possession to the landowner by signing an allotment letter/conveyance deed.

 

As per central government GR.

Notification No. 04/2018 Central Tax (Rate) dated 25th January, 2018. Owner has to pay GST you can file case in the Taxation Department.

Ganesh Kadam
Advocate, Pune
13008 Answers
267 Consultations

Terms of contract are sacrosanct 

 

2) under terms of co tract it was agreed that each party will bear taxes of their part 

 

3) you have to hand over possession of constructed flats as per terms of your agreement 

 

4) you can sue landowners to recover GST fir their part of constructed flats 

Ajay Sethi
Advocate, Mumbai
99775 Answers
8145 Consultations

It appears that the landowner alone has filled the case against you and not you.

Besides you have not initiated any legal action against the landowner to recover the GST amount except to illegally stopping the handover of the possession of the property.

The RERA will pass an order in favour of the landowner because you are at fault.

There are two different subjects before you.

If you are having the right to recover the GST paid by you then you can recover it by due process of law within three years from the date of making payment.

T Kalaiselvan
Advocate, Vellore
89977 Answers
2492 Consultations

Only under construction properties are exigible to GST. Ready to move in flats or completed projects cannot attract GST. It is levied when the  buyer is taking the  services of construction and once project is completed service of construction cannot be charged from buyers. Your question suggests the  project is completed. If the  project has received CC no question of GST arises. 

Ravi Shinde
Advocate, Hyderabad
5125 Answers
42 Consultations

you can challenge the verdict in appellant rera authority

Prashant Nayak
Advocate, Mumbai
34514 Answers
249 Consultations

Hire a lawyer and approach the court with an application requesting a stay order on your property. Along with your application, attach documents such as property papers, identification proof, and FIR along with the application. Mention the reason and nature of stay you are seeking.

Anik Miu
Advocate, Bangalore
11014 Answers
125 Consultations

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