Issue related to taxability. of 'tenancy rights' under GST. - GST - States - 12-28/2017-18-EXN-GST-(528)-15710-727

Circular No. 12-28/2017-18-EXN-GST-(528)-15710-727 Government of Himachal Pradesh, Excise and Taxation Department To 1. The Additional Excise and Taxation Commissioner, South Zone. Shimla-9, H.P. 2. The Jt. Commissioner of State Taxes and Excise Central zone, North zone, Flying squad NZ/ SZ/ CZ. 3. The Director (Directorate Treasuries, Accounts and Lotteries) Block No-23 SDA Complex, Kasumpati, Shimla- 171009. 4. The Dy. Commissioner of State Taxes and Excise, Shimla, Solan, BBN Baddi, Sirimour, Bilaspur, Hamirpur, Mandi, Kullu, Chamba, Kangra, Revenue Distt Nurpur and Una, H.P 5. The Asstt. Commissioner of State Taxes and Excise, Incharge Distt. Kinnour, H.P Dated Shimla-9 the 17 th May, 2018. Madam/Sir, Subject: Issue related to taxability. of 'tenancy rights' under GST- regarding Doubts have been raised as to,- (i) Whether transfer of tenancy rights to an incoming tenant, consideration for which is in form of tenancy premium, shall attract CST when stamp duty and registration charges is levied on the said premium. if yes what would be the applicable rate? (ii) Further, in case of transfer of tenancy rights, a part of the consideration for such transfer accrues to the outgoing tenant, whether such supplies will also attract GST? 2. The issue has been examined. In the system of transferring of tenancy rights against tenancy premium which is also known as pagadi system the tenant acquires, tenancy rights in the property against payment of tenancy premium (Pagdi). The landlord be owner of the property but the possession of the same lies with the tenant. The tenant pays periodic rent to the landlord as long as he occupies the property. The tenant also usually has the option to sell the tenancy right of the said property and in such a case has to share a percentage of the proceed with owner of land. as laid down in their tenancy agreement. Alternatively, the landlord pays to tenant the prevailing tenancy premium to get the property vacated. 3. As per section 9(1) of the HPGST Act there shall be levied state tax on the intra-State supplies of services. The scope of supply includes all forms of supply of goods and services or both such as sale, transfer, barter, exchange, licence, rental, lease or disposal made or agreed to be made for a consideration by a person in the course or furtherance of business and also includes the activities specified in Schedule II. The activity of transfer of tenancy right against consideration in the form of tenancy premium is a supply' of service liable to GST. It is a form of lease or renting of property and such activity is specifically declared to be a service in para 2 of Schedule II i.e. any lease, tenancy, easement, licence to occupy land is a supply of services. 4. The contention that stamp duty and registration charges is levied on such transfers of tenancy rights and such transaction thus should not be subjected to GST. is not relevant. Merely because a transaction or a supply involves execution of documents which may require registration and payment of registration fee and stamp duty would not preclude them from the scope of supply of goods and services and from payment of GST. The transfer of tenancy rights cannot be treated as sale of land or building declared as neither a supply of goods nor of services in para 5 of Schedule III to HPGST Act. 2017. Thus a consideration for the said activity shall attract levy of GST. 5. To sum up, the activity of transfer of tenancy rights' is squarely covered under the scope of supply and taxable per-se. Transfer of tenancy rights to a new tenant against consideration in the form of tenancy premium is taxable. However, renting of residential dwelling for use as a residence is exempt [Sl. No. 12 of notification No. 12/2017-State Tax (Rate), dated 30 th June, 2018]. Hence grant of tenancy rights in a residential dwelling for use as residence dwelling against tenancy premium or periodic rent or both is exempt. As regards services provided by outgoing tenant by way of surrendering the tenancy rights against consideration in the form of a portion of tenancy premium is liable to GST. 6. Difficulty if any, in the implementation of this circular may be brought to the notice of the Department. Yours Faithfully, Sd/- Commissioner of State Taxes and Excise, Himachal Pradesh