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2021 (8) TMI 536 - AAR - GSTConstruction of residential accommodation - Scope of Completion certificate - relevant date of issuance of such certificate - classification of activity of sale of apartment undertaken by the applicant - period pre and post 08.11.2019 - What constitutes the completion certificate as mentioned in clause (b) of Paragraph 5 of Schedule II of the CGST Act and when such completion certificate would be said to have been issued? HELD THAT - The determining factor as to whether GST liability will be attracted for the services of construction of building / apartment intended for sale is the receipt of consideration in respect of the contract of sale. If any consideration is received in respect of the contract, before the issuance of completion certificate then the activity / transaction shall fall within the scope of supply as defined in sub-section (1) of Section 7 and consequently would be deemed to be a supply of services as per provisions contained in sub-section (1A) of Section 7 read with Paragraph 5 (b) of Schedule II of the CGST Act. The completion certificate mentioned therein is the Completion Certificate issued in accordance with the laws, rules and regulations laid down in this regard by the Central Government, State Government or any other authority - The Rules governing the construction or reconstruction or alteration or extension of public and private buildings in the State of Kerala are contained in the Kerala Municipality Building Rules, 1999 issued under G.O.(Ms) No. 188/1999/LSGD dated 01.10.1999 of the Government of Kerala published as S.R.O No. 777/1999 dated 01.10.1999. The Kerala Municipality Building Rules, 1999 was superseded by the Kerala Municipality Building Rules, 2019 issued under G.O. (P) No. 77/2019/LSGD dated 02.11.2019 of the Government of Kerala published as S.R.O. No. 828/2019 dated 02.11.2019. The completion certificate in respect of the construction of a building or civil structure in the State of Kerala is the certificate prescribed in sub-rule (1) of Rule 22 and Rule 20 respectively of the KMBR, 1999 and KMBR, 2019. The completion certificate under any law for the time being in force mentioned in clause (b) of Paragraph 5 of Schedule II of the CGST Act, in so far as the State of Kerala is concerned is the certificate in form in Appendix F prescribed under proviso to sub-rule (1) of Rule 22 of the KMBR, 1999 or the certificate in form in Appendix E3 prescribed under proviso to sub-rule (1) of Rule 20 of the KMBR, 2019. Accordingly. the date of issue of completion certificate for the purpose of clause (b) of Paragraph 5 of Schedule II of the CGST Act shall be the date of issue of the completion certificate submitted to the Secretary in form in Appendix F of the KMBR, 1999 or in form in Appendix E3 of the KMBR, 2019.
Issues Involved:
1. GST liability on sale of apartment prior to 08.11.2019 with consideration received after submission of completion certificate but before expiry of 15 days. 2. GST liability on sale of apartment prior to 08.11.2019 with consideration received after expiry of 15 days from submission of completion certificate. 3. Date of completion of apartment for GST purposes prior to 08.11.2019. 4. GST liability on sale of apartment post 08.11.2019 with consideration received after submission of completion certificate but before expiry of 15 days. 5. GST liability on sale of apartment post 08.11.2019 with consideration received after expiry of 15 days from submission of completion certificate. 6. Date of completion of apartment for GST purposes post 08.11.2019. Detailed Analysis: Issue 1: GST Liability on Sale of Apartment Prior to 08.11.2019 with Consideration Received After Submission of Completion Certificate but Before Expiry of 15 Days - The transaction will not be treated as a supply under GST if the entire consideration is received after the submission of the completion certificate in Form Appendix F to the Secretary as per Rule 22 of the Kerala Municipality Building Rules, 1999. This conclusion is based on Paragraph 5 of Schedule III of the CGST Act, 2017. Issue 2: GST Liability on Sale of Apartment Prior to 08.11.2019 with Consideration Received After Expiry of 15 Days from Submission of Completion Certificate - Similar to Issue 1, if the entire consideration is received after the submission of the completion certificate in Form Appendix F to the Secretary, the transaction will not be treated as a supply under GST in accordance with Paragraph 5 of Schedule III of the CGST Act, 2017. Issue 3: Date of Completion of Apartment for GST Purposes Prior to 08.11.2019 - The date of issue of the completion certificate in Form Appendix F submitted to the Secretary as per Rule 22 of the Kerala Municipality Building Rules, 1999 will be considered the date of completion for the purpose of GST liability under clause (b) of Paragraph 5 of Schedule II of the CGST Act. Issue 4: GST Liability on Sale of Apartment Post 08.11.2019 with Consideration Received After Submission of Completion Certificate but Before Expiry of 15 Days - The transaction will not be treated as a supply under GST if the entire consideration is received after the submission of the completion certificate in Form Appendix E3 to the Secretary as per Rule 20 of the Kerala Municipality Building Rules, 2019, as per Paragraph 5 of Schedule III of the CGST Act, 2017. Issue 5: GST Liability on Sale of Apartment Post 08.11.2019 with Consideration Received After Expiry of 15 Days from Submission of Completion Certificate - Similar to Issue 4, if the entire consideration is received after the submission of the completion certificate in Form Appendix E3 to the Secretary, the transaction will not be treated as a supply under GST in accordance with Paragraph 5 of Schedule III of the CGST Act, 2017. Issue 6: Date of Completion of Apartment for GST Purposes Post 08.11.2019 - The date of issue of the completion certificate in Form Appendix E3 submitted to the Secretary as per Rule 20 of the Kerala Municipality Building Rules, 2019 will be considered the date of completion for the purpose of GST liability under clause (b) of Paragraph 5 of Schedule II of the CGST Act. Conclusion: The judgment clarifies that for both periods (prior to and post 08.11.2019), the sale of an apartment will not attract GST if the entire consideration is received after the submission of the completion certificate to the Secretary. The date of the completion certificate submission is crucial in determining the GST liability.
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