GST rcm liability on residential unit used for business purpose and not on unit used for residential purpose

[navnath padwal]

the govt has made changes in GST liability on rent of residential unit after GST council meeting and has notified changes in notification No 12 and 13/2017- Central Tax (Rate) dated 28.06.2017. 

the notification 12/2017( rate)  refer exemption of service from gst and notification 13/2017( rate)  refer  GST liability under RCM method. 

the govt has by notification added GST on service by way of rending residential unit to registered person under RCM category.  ( serial 5AA of notification) 

further the govt has removed exemption to such service from notification 12/2017(rate). 

now, question is whether every registered person require to pay GST under RCM on all rent of residential unit including residential unit used for residential purpose and simultaneous reverse such ITC related to personal nature.

This provision, however, has to be read in conjunction with section 2(105) read with section 7 of the said Act. Section 2 (105) defines supplier as a person supplying the goods or services. section 7 provides that a supply is a transaction, for a consideration by a person in the course or furtherance of business( except specifically included item like import of service for personal or co operative society activity ) .

from section we can conclude that GST is leviable on supply made in course or in furtherance of business only except specifically included item( like import of service for personal or co operative society activities).    

moreover, we can also refer clarification given by CBEC on 13.7.2017 for RCM liability of jeweler for old gold purchase from consumer, wherein the CBEC clearly said that Jeweler need not to pay GST under RCM on old gold purchase from consumer as such supply is in nature of personal nature.     

the inter-supreme court also referred section 2(105) and section 7 in UNION OF INDIA & ANR. VERSUS M/S MOHIT MINERALS PVT. LTD. THROUGH DIRECTOR [2022 (5) TMI 968 - SUPREME COURT].  we will discuss intern connection of this section for RCM liability in next article.