2021 (12) TMI 61 - AAR - GST

Levy of GST - providing residential land on lease basis for which lease premium charged/received - maintenance charges - lease rent received on such residential land - provision of law under which benefit claimed, is not stated - HELD THAT - In the given facts of the case, even though the applicant has not stated the provision of law or the Entry No. of Notification No. 12/2017-Central Tax (Rate), which has led the applicant or the applicant's customers to believe that GST is not payable on the lease of residential land. It is believed that it shall be injustice if the question remains unanswered because of the short comings in the application. Therefore. in the interest of justice, we are proceeding on premise that the applicant is seeking relief under Entry No, 12 of the Notification. It is well accepted that in the case of ambiguity in a provision of law, the interpretation shall be liberal. However, in the case of an exemption notification, the interpretation shall be strict. In this case, the entry grants exemption to Services by way of renting of residential dwelling for use as residence. It does not refer to land whether as part of the residential dwelling or otherwise. There are many instances, where the legislature, where it intends a separate dispensation for land or specific treatment of land uses the phrase building and land appurtenant thereto . No such phrase has been found in Entry No. 12. In the case of a single unit built on a parcel of land, the land is part of the building and in the case of multiple residential units on a parcel of land, there is share of undivided land that is part of each flat - The building constructed is not considered while decided on the renewal of the lease. Thus, in the case of residential building constructed by the lessee on leased land, it is always the lease of the land that is renewed. The building does not attain the character of a leasehold property. Since the entry grants the exemption to a leased / rented residential dwelling, the benefit is therefore restricted to a residential building which has been let out and does not extend to a parcel of land which has been taken on lease for construction of a residential dwelling on the said land.

Summary

Issues:
1. Whether GST is leviable on the lease of residential land?
2. Whether GST is leviable on maintenance charges and lease rent received on residential land?

Analysis:
1. GST on Lease of Land:
The Authority analyzed the provisions of the GST Act and Transfer of Property Act to determine that leasing immovable property constitutes a supply of service. The Authority highlighted that the consideration for a lease could be in the form of premium or rent, making it a taxable transaction. The judgment emphasized that the intention of the legislation was clear in taxing lease transactions, as evidenced by specific exemptions for certain cases. The decision cited a Bombay High Court ruling supporting the taxability of one-time premiums on land leases under GST laws.

2. GST on Lease of Residential Land:
The Applicant's ambiguity in stating the legal basis for believing GST exemption on residential land leases led the Authority to interpret the case liberally. The ruling clarified that the exemption for renting residential dwellings did not extend to leased land for constructing residential buildings. The judgment differentiated between leasing a residential building and leasing land for residential construction, emphasizing that the exemption applied only to leased residential dwellings, not land.

The ruling concluded that GST is leviable on the lease of residential land and on maintenance charges and lease rent received on such land. The decision is subject to the provisions of the GST Act unless declared void under the relevant sections.