Haryana VAT – State VAT v. Builders v. Flat Owners – A Triangular Tussle

[CA.Ankit Gulgulia]

If you have an open property interest or if you have purchased a property in Haryana or if you a builder / Developer in Haryana, then you might have been aware about few frivolous issues viz, demand notice that the builders are raising on the buyers on account of additional Haryana VAT and recent case of Hon’ble Supreme Court in L&T Limited.

The Sales tax thrust on builders and developers have gained drastic momentum post the recent rulings of Hon’ble Supreme Court in L&T Limited v. State of Karnataka 2013 (9) TMI 853 - SUPREME COURT which in principle accepts the law laid down in earlier judgement in case of K RAHEJA DEVELOPMENT CORPORATION Versus STATE OF KARNATAKA - 2005 (5) TMI 7 - Supreme Court

Haryana VAT Authorities have released several circulars on back to back basis in this regard:-

1.  Prior to L&T Judgement, the Haryana VAT Authorities (in conformity with K. Raheja Law) had released a circular No. 952/ST-1 dated 7^th May, 2013:-

1.  This circular clarified the assessment mechanism and various other issues as relevant for taxing such transactions related to agreements by developers/builders with prospective buyers.
2.  Also, this circular categorically mentioned that where the builder/developer opts for composition scheme under Rule 49 then the value of taxable consideration shall exclude the land component except in cases of joint development agreement.
3.  Currently, with no other clarification available or legal support under the specific scenario of civil works contract and their relevant ancillary issues like WCT, Valuation, procedural compliances and composition scheme (under Rule 49 as applicable on works contractors), the above said circular can be seen as only legal reference point for builder community.

(b)  Circular No. 693/ST-1 dated 26.3.2013 clarified that the VAT D-1 benefit is available only to manufacturer and lump-sum dealer under Rule 49. Hence where a Builder/Developer does not opts for composition scheme the benefit of reduced rate under VAT D-1 shall not be available.

(c)     This was then followed by another circular No. 1166/ST-1 dated 4.6.2013 which clarified the limitation aspects in regard to both the registered dealers and unregistered dealers under Section 15 and 16 of HVAT,2003 respectively. Further the reassessment under Section 17 and revision of original order under Section 34 have been detailed.

(d)  Circular No. 41/ST-1 dated 14.1.2014 wherein it was clarified that the Levy of additional tax at the rate of 5 percent (i.e. surcharge) is applicable on all the composition rates except that of the retailers. Hence the effective rate of tax for the works contract dealers / Builders and Developers shall be 4.2 percent .

(e)  Circular 259/ST-1 dated 10.2.2014 takes a stand exactly opposite to circular No. 952/ST-1 in regard to valuation of taxable consideration under composition scheme. This circular amends the earlier circular to include even the value of land in the value of taxable consideration. 

With the above circular no. 259 (to many it comes as a tyranny), the authorities have stirred a significant row of hue and cry because it is felt that the circular has only increased the tax burden drastically but also not addressed to other important ancillary issues that are bound to creep up because of this amendment. Some of them will be:-

1. Date of applicability of this Order? Whether it can substitute the relevant valuation mechanism with retrospective effect?

One of the astonishing aspect of the circular has been that there no specific date of applicability mentioned in the circular. It clearly means that the revenue will take the stand that the circular is a clarificatory in nature circular and hence shall have retrospective effect. The stand is surely debatable and will enter into litigation sooner or later.

In case of Ranbir Singh Ram Gopal v. St. Of Hr. 1996 (12) TMI 382 - PUNJAB AND HARYANA HIGH COURT, it was held that the there shall be no retrospective enhancement in tax-rates by notification / circular. Revenue shall not initiate recovery of enhanced tax for erstwhile assessment periods. Same view was held in Rattan Bhatta & others v. St. Of Haryana and others (2000) 16 PHT 487 (P&H). Judgements in other indirect tax laws like service tax , excise can also be resorted to this principle.

2. Since many builders would have started paying without land component, Can the burden of increased tax be passed on to the customer when composition scheme allows no additional tax recovery from the contractee?

Another problem the builder community faces is lack of proper burden passing on mechanism under the composition schemes of VAT. Under HVAT (similar to most states) the tax cannot be collected separately on the strength of invoice where the dealer opts for composition scheme under rule 49.

3. Whether the assessee’s can be re-assessed based on this circular?

Another dilemma this circular is silent on is whether this circular can be made as the basis for re-assessment or revision of orders under Section 17 and section 34 respectively. Considering the broadness of circular No. 1166 it is very much on the cards of the revenue to explore this aspect further.

4. Other Issues still be addressed and wanting the uber-attention of Law Makers and Law Administrators

1. No modus operandi has been identified in regard to WCT deduction by the customers as they cannot as structured as contractee to a normal works contract. Whether every customer as required to deduct WCT shall now seek registration under Haryana VAT Act?

There is major requirement to insert an exception to WCT deduction provisions to exclude flat buyers from WCT deduction liability. Ironically, the a normal individual flat buyer today stand same as a well structured works contract contractee, though ground reality is exactly different. Individual flat owners cannot be expected to take registrations under sales tax, deduct WCT and deposit the same on behalf of Developers.

Note: - There is discreet difference in Delhi VAT and Haryana VAT in regard to deduction of WCT. In Delhi, where the individual/HUF is the contractee, they are not burdened with WCT deduction liability (as per Section 36A of DVAT Act), while in Haryana the same is not the case, hence even the individual / HUF shall be covered in the ambit of Contractee and thereby being liable to deduct WCT.

Million Dollar Question: - Can the burden of additional taxes be passed to the customer or not? And will it affect the service tax liabilities??

Another very interesting issue to arise here is that most developers enter into an agreement with prospective buyers according to which additional taxes are to be borne by the customers (as a part of space buyer’s agreement).

But the governing section 9 of composition scheme mandates the contractor/developer not to issue any tax invoices. Hence no tax can be collected on the strength of tax invoice

Note:-Please note that the additional taxes cannot be collected on strength of tax invoice only in case of Composition scheme, the same can be collected under actual / prescribed method of assessments.

The additional tax might have to be recovered as additional consideration (if agreement so allows), further this additional consideration shall be subjected to additional service tax under construction service. (Really how easy they made this!!)

In crux, the answer to above reply depends on ‘n’ number of factors like the agreement clauses and assessment modes of the builders.

Amnesty Scheme for Haryana VAT shall be released for Smoother Facilitation of Judgement

It is a well known fact that from the period of applicability of HVAT Act till the time when the supreme court’s judgement in case of L&T was issued, most builders were not registered and thus not paying taxes on sale of flats to intended purchasers in light of uncertain laws.

Hence it is a hardship on both the builders and Flat owners if they are asked to pay the taxes at the rate of 4.2 percent for period of FY 2010-2011 onwards also (as per limitation under Section 15 / 16 of HVAT Act).

In such a scenario the HVAT can adopt the model of Delhi VAT to increase its efficiency of tax collection and smoothness of tax obligation discharge by Trade.

1. The Amnesty scheme can provide a flat rate of tax as a percentage of total consideration (i.e. land and Construction cost). The same is crucial as the builders also get a clear idea of how burden is to be passed to the customers and customers understand the same in more transparent manner.
2. There should be a mutual exclusive clause in tax to be paid by builder or WCT to be deducted by intended flat owner. Hence where the amount is paid by the builder, WCT need not be deducted.
3. The scheme shall be made applicable to all the Builders / Developers in widest range possible. 

Conclusion

Before parting...., the author would like to express the urgent need of streamlining the tax structure for the builders/developers to ensure transparent revenue and unnecessary harassment. Some of the steps that revenue might resort too can be:-

+separate composition scheme for developers,

+the applicability of circular 259 to be clarified as prospective

+WCT to be dispensed away in developer’s cases and complete liability of tax shall be casted on the developers which will be more relished by the trade and would reduce paper work also.

+ Amnesty Scheme similar to Delhi VAT shall be implemented in Haryana also.

Note:-

Few Matters related to the episode are already Sub-judice under Punjab & Haryana High Court.--

About the Author:

CA Ankit Gulgulia

Author is Practicing Chartered Accountant in New Delhi/NCR and specialising in Indirect Taxes, Corporate Laws and Transfer Pricing. He can be reached at ankitgulgulia at the rate of gmail.com or at +91-9811653975

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