RCM ON FEES TO PAID TO LOCAL AUTHORITIES, Goods and Services Tax - GST

[Sadanand Bulbule]

Dear Experts

Entry No.5 of Notification No.13/2017- Central Tax [Rate] dated 28/06/2017 reads as mentioned in the table below.

But nowhere the nature of services supplied by the Central Government, State Government, Union territory or local authority are explained in the said Notification. Factual position being so, it can be inferred that the services other than specifically “excluded” services therein are taxable under RCM.

Services supplied by the Central Government, State Government, Union territory or local authority to a business entity excluding, - (1) renting of immovable property, and (2) services specified below- (i) services by the Department of Posts (ii) services in relation to an aircraft or a vessel, inside or outside the precincts of a port or an airport; (iii) transport of goods or passengers.

Central Government, State Government, Union territory or local authority

Any business entity located in the taxable territory.

My take:

The Local Authorities are defined under the State Town & Country Planning Act. They are Municipal Corporation, Municipal Council, Town Panchayat or Grama Panchayat. Such local authorities grant statutory permission/approval for the construction of real estate projects like residential towers, commercial complexes like shopping malls, star hotels etc., and charge fees according to the prevailing laws under the respective State Municipal Corporations.

Query:

Whether such fee paid to the local authorities for supply of service of statutory permission and approval of real estate projects is liable to RCM in the hands of business entity located in the taxable territory? If so, the relevant details please?

Experts to throw light on this issue.

Posts / Replies

[Sadanand Bulbule]

Dear all

Section 2 [69] of the CGST Act defines " Local Authorities" as below:

(a) a “Panchayat” as defined in clause (d) of article 243 of the Constitution;

(b) a “Municipality” as defined in clause (e) of article 243P of the Constitution;

(c) a Municipal Committee, a Zilla Parishad, a District Board, and any other authority legally entitled to, or entrusted by the Central Government or any State Government with the control or management of a municipal or local fund;

(d) a Cantonment Board as defined in section 3 of the Cantonments Act, 2006 (41 of 2006);

(e) a Regional Council or a District Council constituted under the Sixth Schedule to the Constitution;

(f) a Development Board constituted under article 371 and article 371J of the Constitution; or

(g) a Regional Council constituted under article 371A of the Constitution;

[Sadanand Bulbule]

Dear all

In terms of serial number 6 of Notification No.12/2017-Central Tax [Rate] dated 28/06/2017, the following intra-State supply of services are exempt from tax leviable under Section 9 [1] of the CGST Act, 2017 without any condition.

6

Chapter 99

Services by the Central Government, State Government, Union territory or local authority excluding the following services- (a) services by the Department of Posts and the Ministry of Railways (Indian Railways)]  (b) services in relation to an aircraft or a vessel, inside or outside the precincts of a port or an airport; (c) transport of goods or passengers; or (d) any service, other than services covered under entries (a) to (c) above, provided to business entities.

Nil

So keeping this exemption in mind, experts are solicited to offer their comments to clear the doubts.

[KASTURI SETHI]

Sh. Sadanand Bulbule Ji,

Sir, My views are as under :-

(i) First question arises what is meaning of 'fee' here. As per the judgement of Hon'ble Supreme Court in the case. Govt. of A.P. Vs. Hindustan Machine Tools Ltd. - 1975 (5) TMI 84 - SUPREME COURT,

"Fees are a sort of return or consideration for services rendered, which makes it necessary that there should be an element of quid pro quo in the imposition of a fee. There has to be co- relationship between the fee levied by an authority and the services rendered by it to the person who is required to pay the fee".

Thus fee is a payment for special service rendered. In other words, fee is a return or consideration for services rendered. It is pertinent to mention here that 'fee' is not 'tax' and vice versa.

(ii) Since the services mentioned by you in the query have not been specifically excluded from Notification No. 13/17-CT (R) dated 28.06.17 as amended, GST is applicable on these services but strings (you may say concessions) are attached to this. There are two strings ( nay concessions) :-

(a) If these services are entrusted to local authority under Article 243 G of Constitution of India or Article 243 W of Constitution of India, then these are neither goods nor services. Thus there will be no question of levy of GST. No question of applicability of RCM.

(b) Where the consideration for the above services does not exceed five thousand rupees, these service are exempt in terms of Notification No. 12/2017 -CT (Rate) dated 28.06.17.

These are my personal views

Before arriving at final decision, please also go through serial no. 7 of Board's Circular No. 192/02/2016-ST dated 13.04.16. Although it pertains to Service Tax, yet it is useful in this scenario.

Sir, I hope my views will be helpful in arriving at final decision by you.

[Padmanathan Kollengode]

Pls consider the exemption Entry 3 of Notification No. 12/2017 Central Tax:-

3

Chapter 99

Pure services (excluding works contract service or other composite supplies involving supply of any goods) provided to the Central Government, State Government or Union territory or local authority by way of any activity in relation to any function entrusted to a Panchayat under article 243G of the Constitution or in relation to any function entrusted to a Municipality under article 243W of the Constitution.

Nil

Nil

Further, the Constitution of India:

TWELFTH SCHEDULE

(Article 243W)

1. Urban planning including town planning.

2. Regulation of land-use and construction of buildings.

... ... ... ...

Pls consider whether the fee charged by the Local Authority is for a service rendered in relation to any function entrusted to Municipality under article 243W as above?

In case it is covered, then RCM will not be applicable. Otherwise, the same will be liable to RCM if provided to business entity and more than Rs.5,000/-.

[KASTURI SETHI]

Sh.Sadanand Bulbule Ji,

Sir, Here the query is about supply of service (granting permission, approval etc.) by Loal Authority to business entity (recipient of supply) on payment of fee. Local Authority is supplier of service and business entity is recipient of service for which fee will be paid to :Local Authority.

For correct reply, the definition of 'business' under Section 2 (17) (i) of CGST Act has to be read with Section 7 (2)(b) ibid conjointly with Notification No. 12/17-CT(R) and 13/17-CT(R) both dated 28.06.17 as amended.

To be continued

[Sadanand Bulbule]

Dear experts

Thanks for your quick responses.

My supplementary query is:

Can the supply of goods or services or both remain concurrently taxable as well as exempt despite separate notifications to this effect?

Does the Sl No. 6 of Notification No.12/2017 CTR [exemption notification issued under basic charging Section 9 [1] not prevail over Sl No.5 of Notification No.13/2017-CTR [RCM taxable notification] dated 28/06/2017?

If so, what might be the intent of lawmakers?  Is it justifiable in the court of law?

Note:

My understanding is, as long as the goods or services or both continue to be taxable under Section 9 [1], they remain under FCM unless selectively shifted under RCM as per the recommendation of the GST Council. Once the goods or services or both are specifically notified as exempt from tax, the question of shifting such supply under RMC does not arise like in the present case.

Experts to continue their valuable efforts to bring more clarity for the general visitors of TMI.

Gratitude and warm regards.

[KASTURI SETHI]

Sh.Sadanand Bulbule Ji,

Sir, I wholly agree with your following:-

"My understanding is, as long as the goods or services or both continue to be taxable under Section 9 [1], they remain under FCM unless selectively shifted under RCM as per the recommendation of the GST Council. Once the goods or services or both are specifically notified as exempt from tax, the question of shifting such supply under RMC does not arise like in the present case".

To be contd.

[Sadanand Bulbule]

Dear all

For the sake of TMI visitors’ academic benefit, the following details prevailing in Karnataka are furnished. Most of the similar parameters apply PAN India to grant permission for development land or construction building.  

1] Bangalore Development Authority is empowered to grant or refuse permission for development of land or building within its jurisdiction outside the limits of the Local Body (i.e. Bruhat Bangalore Mahanagara Palike / BBMP) and within the Local Planning Area of Bangalore Development Authority.In the first stage, the applicant should apply for Building Plan Approval to the Authority. The application along with documents, affidavit and applicable NOCs has to be submitted, application is verified and scrutinize as per procedure, then authority will issue fee challan, on submitting the remittance challan. Sanction Letter for Building Plan Approval is issued by the Authority.

2] The Authority permits development based on the following statutory provisions:

• The Bangalore Development Authority Act, 1976

• The Karnataka Town & Country Planning Act, 1961

• The Master Plan of Bangalore and its Zonal Regulations (RMP 2015)

• The Building Bye laws of Bangalore 2003

3] The following fees are applicable for approval of Building Plan

1. Plan Scrutiny fee

2. Ground Rent fee

3. Development charges

4. Slum Clearance fee

5. Labour Welfare Cess

6. Security Deposit

7. Plan copies fee

8. Lake Development Cess

However my query stands intact for clarification by the experts.

 

[Padmanathan Kollengode]

Kasturi Sir, thats for pointing out that Entry 3 referred by me is incorrect. My sincere apologies to the querist and readers.

Nevertheless, the same is covered under Section 7(2) read with Notification No. 14/2017-Central Tax (Rate) dated  28th June, 2017 which reads as under:-

G.S.R. 693(E) - In exercise of the powers conferred by sub-section (2) of section 7 of the Central Goods and Services Tax Act, 2017 (12 of 2017), the Central Government, on the recommendations of the Council hereby notifies that the following activities or transactions undertaken by the Central Government or State Government or Union territory or any local authority in which they are engaged as public authority, shall be treated neither as a supply of goods nor a supply of service, namely:-

“Services by way of any activity in relation to a function entrusted to a Panchayat under article 243G of the Constitution or to a Municipality under article 243W of the Constitution.

2. This notification shall come into force with effect from the 1st day of July, 2017.

------

[Padmanathan Kollengode]

As per Para 4 the service provider is Bangalore Development Authority (and similar authorities).

One has to consider whether the same is Local Authority or Governmental Authority.

The term "Governmental Authority” is defined in Notification No 12/2017 Central Tax (rate) to means an authority or a board or any other body, -

(i) set up by an Act of Parliament or a State Legislature; or

(ii) established by any Government,

with 90per cent. or more participation by way of equity or control, to carry out any function entrusted to a Municipality under article 243W of the Constitution or to a Panchayat under article 243G of the Constitution.

Following exemption is also granted to certain services provided by a Governmental Authority

4	Chapter 99	Services by 25[****]governmental authority by way of any activity in relation to any function entrusted to a municipality under article 243 W of the Constitution.	Nil	Nil
5	Chapter 99	Services by a 8[26[****]Governmental Authority] by way of any activity in relation to any function entrusted to a Panchayat under article 243G of the Constitution.	Nil	Nil

[Padmanathan Kollengode]

As for the larger issue of whether Exemption will apply to RCM which is raised, Section 9(3) reads as under

(3) The Government may, on the recommendations of the Council, by notification, specify categories of supply of goods or services or both, the tax on which shall be paid on reverse charge basis by the recipient of such goods or services or both and all the provisions of this Act shall apply to such recipient as if he is the person liable for paying the tax in relation to the supply of such goods or services or both.

Since exemption is provided under section 11 of the Act, the same should also apply to the recipient in terms of the wordings of section 9(3).

[Sadanand Bulbule]

My dear Sh.Padmanthan ji

While responding to your inputs, I have referred only academic examples. In realty, Bangalore Development Authority like similar authorities PAN India is NOT the local authority for the purpose of present discussion on RCM.

Thanks for your continued efforts.

[Padmanathan Kollengode]

Sri Sadanand Bulbule Sir,

Thanks for clarifying. In the original query, you had sought the impact when said service provided is by Local Authorities.

However since Bangalore Development Authority (and similar authorities PAN india) are not Local Authorities, as clarified by you above, the question of RCM doesn't arise imo.

Regarding exemption, one has to check whether the said authorities would fall under "Governmental Authority" for which more inputs are required as to the constitution of such authority. If they do fall under "Governmental Authorities", they are eligible for exemption under S No.4 and 5 of NN 12/2017 CTR referred above.

[Sadanand Bulbule]

Dear Sh.Padmanathan ji

I welcome your decision to endorse the outcome of discussion that, fees paid to Local Authorities for the services rendered by them is not liable to tax under RCM. The similar logic/exemption also applies to the services supplied by the Government Authorities mentioned above.

The readers shall reap the benefits of such thought provoking contribution gifted by the experts.

[Sadanand Bulbule]

Dear all

THE BANGALORE DEVELOPMENT AUTHORITY [BDA] is constituted under Section 3 of the BDA Act, 1976 as a special purpose vehicle for planning, improvement and development of  area comprising the City of Bangalore.

Further BDA is also defined as  "Planning Authority" under Section 7[a][i] of the Karnataka Town & Country Planning Act, 1961.

Most of the metro cities, urban areas and some world heritage areas have such  "Authorities" for similar purpose constituted under specific Acts. In other places, Town Improvement Boards are there to take care of such needs.

This is only for general information.

[KASTURI SETHI]

Sh. Sadanand Bulbule Ji,

Sir, The whole interaction does not talk of correct HSN for 'supply of service of statutory permission and approval of real estate projects by the Local Authority'. The ascertainment of correct classification of service is a must to reach right destination here.

Am I right or skipping something ?

Your valuable opinion pl.

[Sadanand Bulbule]

Dear Sir

Your observation is essentially right. It needs to be ascertained. Hope you would continue with an  apt remedy too. 
Warm regards. 

[KASTURI SETHI]

The terms, 'Local Authority' and 'Government Authority' are entirely different. terms. Moreover, Here Government Authority is not in picture.

[KASTURI SETHI]

Sh.Sadanand Bulbule Ji,

Sir, The supplementary query and additional information do not disturb the essence of your original query. Hence my views are in continuance of my earlier views posted above.

(i) From a chain of above interaction among us, I think that there is a consensus among us to the extent that the said activity by a local authority is a supply of service because there is a consideration in the form of fee and if that supply of service is exempted or non-taxable by virtue of any notification or by Section itself RCM is not applicable otherwise RCM is applicable. However, I further express as under, though there is a repetition of your views and Sh. Padmanathan Kollengode's views for the sake of sequence.

(ii) As per Serial No. 5 of Notification No. 13/17-CT (R) dated 28.06.17 as amended, the GST on supply of the services, excluding exceptions, supplied by Central Govt., State Govt., Union Territory or local authority to a business entity shall be payable by a business entity (recipient of supply). In order to levy GST there must be a supply of service and must be a taxable supply i.e. must not be covered under any exemption or non-GST supply and there must be a consideration in the course of business or furtherance of business.

(iii) The main issue involved is whether granting statutory permission and approval of real estate projects by a local authority to a business entity is supply of service or not. ?

(iv) It is relevant to go through the definition of the term ‘business’ under Section 2 (17) (i) of CGST Act, 2017 which is extracted below :-

Section 2 (17) (i) : Business includes

(i) any activity or transaction undertaken by the Central Government, a State Government or any local authority in which they are engaged as public authorities;

(v) Thus any activity or transaction undertaken by the Central Government, a State Government or any local authority in which they are engaged as public authorities shall constitute a supply leviable to GST, if it is made against a consideration except those transactions which are specifically notified as non-supplies in terms of Section 7 (2) of CGST Act and those transactions which are exempted vide Notification No. 12/17-CT (R) dated 28.06.17 as amended.

Section 7 (2) of CGST Act

(2) Notwithstanding anything contained in sub-section (1), —

(a) activities or transactions specified in Schedule III; or

(b) such activities or transactions undertaken by the Central Government, a State Government or any local authority in which they are engaged as public authorities, as may be notified by the Government on the recommendations of the Council, shall be treated neither as a supply of goods nor a supply of services.

Thus in view of the above legal position, it can be inferred that granting statutory permission and approval of real estate projects by a local authority against a consideration is a supply of service.

Whether fee paid to Govt. or local authority is a consideration ?

(vi) Fee is to be treated as consideration as discussed in serial no. 3 above on the basis of the judgement of Supreme Court. Fee is always something for something. For example ;

We pay registration fee to RTA and get permission to run vehicle on road. We pay Advance Authorisation fee to DGFT Office and get permission to import duty free inputs. We pay parking fee and get the permission to park vehicle in the area specified for parking. Similarly, we pay registration fee to the Registrar Trademark Authority and get permission to use/own the trademark. There are so many examples like market fee, Entry fee, Adda fee etc. Therefore, it is not in dispute that fee paid to Govt. or local authority for getting permission for specific purpose is a consideration.

Notification No. 12/17-CT (R) dated 28.06.17 grants exemptions, inter alia, to services provided by Central Govt, a State Govt., U.T. or local authority.

i. Services specified in Article 243 G of Constitution of India entrusted to Panchayats. (Serial No. 5)

ii. Services specified in Article 243 W of Constitution of India entrusted to Municipalities. (Serial No. 4)

iii. Specified taxable services provided to the recipients other than business entities.

iv. Specified taxable services provided to a business entity having turnover within threshold limit.

v. Specified taxable services where consideration does not exceed Rs. 5000/- (Serial No. 9 of Notification No. 12/17-CT (R) dated 28.06.17 refers).

There are so many other exemptions available for services provided by Govt. in this notification.

(vii) If any service supplied by Central Govt, State Govt., UT or a local authority does not fall in any of the above (i) to (v) and other exemptions provided in this notification also not exempt from GST under any other notification, such supply of service would be leviable to GST and hence GST will be applicable to the recipient business entity under RCM also.

The exact conclusion can be drawn only if full facts about the recipient of the said service are known to us.

These are my personal views.

Looking forward for your valuable views. I welcome your views even if there is a difference of opinion for the sake of enlarging the horizon of knowledge on this very issue, it being thought provoking and interesting and in the large interest of ALL.

Regards from the core of my heart.

[Sadanand Bulbule]

Dear Sh. Sethi Sir

Coming back to my original query, it is gathered from highly reliable sources that, taxpayers are being issued notices to pay tax under RCM on fees paid to “Local Authority” in terms of Sl No. 5 of Notification No.13/2017-CTR dated 28/06/2017. 

There is also the Notification No.12/2017-CTR dated 28/06/2017 exempting such services vide its Sl No. 6. Probably this notification has escaped the mind of the authorities. Be it may like that. Noticee takes care of it.

Much water has flown on this issue by way of discussion gifted by the experts.  Still I add the following few general points:

Under Section 9(1) subject to sub-Section (2) and Section 7, all supply of goods or services or both are liable to tax/cess under different GST Acts, being ad valorem levy. However notifications granting exemption of tax are interlude in nature, albeit by putting taxpayers on some terms. Such notifications are prone to revocation [seldom] by virtue of wisdom of the GST Council and the Government. Till then notifications provide an episode of relief to the taxpayers.

Taxability of every supply of goods or services is the central pillar of the GST Act unless it is specifically exempt via notification or excluded as such in the schedules annexed to the Act. In simple words, notifications or schedules give liberation to the specific supply of goods or services or specific class of taxpayers from the central pillar of taxability. Otherwise they orbit around central pillar of taxability.

To achieve successful adjudication determining a particular transaction is taxable or otherwise, it does not need magic.  Rather there are two simple answers to choose: “Yes” or “No” and then prove it “how” with a symphony of judicious vision and clean mind. The primary act--the process of reason--must be performed by the adjudicator, being the opening source for all future outcomes. This recipe works great. There is no answer like “Maybe”. Adjudication should be a trial by irreversible facts, the touchstone of virtue and not by evaporating opinion through another’s brain.

Let the law live for all. Let inclusive progress and total equality continue. This is what the tax laws are destined for and not to break the spine of honest taxpayers.

Your and other experts' comments are highly solicited.

[Shilpi Jain]

I agree with the view of Mr. Padmanathan on notificaiton 14/2017.

Also, the exemption notification has an exemption available for services provided by governmental authority in relation to 243G and 243W.

The plans and permissions approved will fall thereunder and would be eligible for exemption.

[KASTURI SETHI]

Sh. Sadanand Bulbule Ji,

Sir, I have thoroughly perused your original as well as spontaneous thoughts posted at serial no. 20 dated 25.06.24. I agree with you since the ultimate purpose of framing laws is to provide fair justice to the public.

In continuation of my views already expressed above, I further express my views on the issue raised by you in the whole discussion and in the query itself. My views are in the interest all those persons who have been show caused by the department on this very issue raised by you in the query.

(a) If the service supplied by a local authority to a business entity is covered under the category of 'exemption' or 'non-taxable' or 'non-GST supply' by virtue of any exemption notification or any Section of the Act itself, Serial no. 5 of Notification No. 13/17-CT (R) dated 28.06.17 as amended will not come into play at all. When we talk of exemption, non-taxability or non-GST supply, RCM liability is relegated to the background.

(b) Therefore, SCN cannot be issued in such a situation detailed above in (a). Anyhow, If the SCN is issued, that will be vague and lame SCN and will not be sustainable in the letter and spirit of GST laws. Such SCNs are droppable at the first stroke by the Appellate Authority (if the Adjudicating Authority is different from SCN Issuing Authority, such SCN can be dropped at the first stage.) So such SCN (if issued) can be termed as harassment to the bona fide and honest tax payers. The issuance of such SCN will also be in violation of the Central Govt's policy whereby bona fide and honest taxpayers are to be honoured.

(c) There are so many judgements wherein various High Courts and Supreme Court have passed strictures along with fine against the SCN Issuing Authority and Adjudicating Authority on the basis of issuance of vague and lame SCN. One such case law is given below :-

The Hon'ble Gujarat High Court in the case of RAFIK ALIBHAI MAKVANA Vs. STATE OF GUJARAT - 2022 (3) TMI 443 - GUJARAT HIGH COURT has held as under :

"Strictures against the department - Vagueness of Show Cause Notice and Adjudication order - In past also the department had been issuing many vague SCNs/orders which were earlier criticized and set aside by Court hundreds of times - It was beyond understanding of Court as to why State GST department was working in such high handed manner and why its officers were not ready to understand and improve - Article 226 of Constitution of India. [para 5].

(d) Liability to tax has to be proved by Revenue Authorities but to earn the exemption, the assessee has to establish his eligibility ---Nizam's Religious Endowment Trust Vs. CIT 1965 (10) TMI 22 - SUPREME COURT. There is a plethora of judgements of various courts wherein it has been held that burden to prove tax exemption under a notification is cast on the assessee who claims exemption. CC Vs. Dilip Kumar & Co. - 2018 (7) TMI 1826 - SUPREME COURT (5-Member Constitution Bench).

(e) Since the facts and circumstances of each case are not always the same so the applicability of RCM to any service received from Govt by a business entity depends on the facts and circumstances of each case.

In the absence of facts and circumstances, final and confirmed view/advice here is not possible. These views are to be read in conjunction with all the above views and not in isolation.

Disclaimer : These are my personal views and meant for academic interest and not meant for any Court proceedings.

[Sadanand Bulbule]

Dear all
The visitors may treat this product as arising out of different versions of interpretations of the contributors. That may or may not be near to the object of the law framed by Parliament. Interpretation itself is not the absolute law per se. Interpretation should not affect with overwhelming intensity of the law.

So wherever there is ambiguity in law, better to consciously understand the law as it is or its translation in pure form to reach the right possibility. Visitors need not be “obsessed ” about particular interpretation but need to be dealt with carefully.

Thanks for all visitors and contributors.

[Sadanand Bulbule]

Dear all

Please refer the following CBIC Circular on RCM on the services provided by the GOI in terms of Notification No. 13/2017 CTR dated 28/06/2017 for academic purpose and in relation to the similar issue under discussion:

Circular No.-222/16/2024-GST