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-TIOL-46-SC-CT-LB) which in principle accepts the law laid down in earlier judgement in case of K. Raheja case.

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

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

(i) 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.

(ii) 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.

(iii) 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 @ 5% (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%.

(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:-

a) 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. CWP No. 11994 dated 11.12.1996, 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.

b) 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.

c) 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.

d) Other Issues still be addressed and wanting the uber-attention of Law Makers and Law Administrators

a. 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 @ 4.2% 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.

a) 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.

b) 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.

c) 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.

Read Other Articles from CA Ankit Gulgulia (Jain)

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About the Author:

CA Ankit Gulgulia (Jain) – Author is practicing Chartered Accountant in New Delhi and specialising in Indirect Taxes, Corporate Laws and Transfer Pricing. He can be reached at ankitgulgulia@gmail.com or +91-9811653975

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7 responses to “Haryana VAT – State VAT v. Builders v. Flat Owners – A Triangular Tussle”

  1. G G Ghosh says:

    I have Purchased a flat on 29 Dec,2011, at that time total flat value calculated as
    Basic Sale Price 1825600
    interest Free Maintenance Security 65200
    Open Car Parking 75000
    EDC/IDC 345873
    PLC PARK FACING 130400
    Utility Connection Charges 20000
    Power Backup Charges Installation 31250
    EEC/FFC Charges 130400
    Club Membership 50000
    Electricity meter and fitting 12000
    I want to Know what will be the Vat charges, Builders demanding Vat including Interest 35447

  2. Rajender Kumar says:

    I have purchased a flat from reputed builder in Sector 76 BPTP and registered in 2014 after payment of all dues but now I have plan to sale it but now BPTP demanding for vat payment aprox 1 lacs. How the builder can demand now on account of vat to me. Kindly guide me
    Rajesh kumar

  3. sunil kant sharma says:

    I have purchased a flat in park floor sec 76 in faridabad in bptp I had deposited registration money in 2013 bt still not get my property registered. Now they are demanding vat amount in fixed deposite before registration. I cant understand what to do now pls guide me

  4. arun agarwal says:

    Bestech is one of the natorious builder in the haryana region. He doesnot have a clarity and playing with people money people should avoild investing in bestech group property . He has been unfair in chargng the VAT and other charges when its come to delay charges he is the last share the same
    Please avoid BESTECH as builder

  5. Brij Mohan bhasin says:

    I have been allotted a commercial unit from DLF in Okhla, New Delhi. DLF is asking us to pay WCT andVAT and service tax on it based on judgement given by Supreme Court in recent L & T case. Please let me know whether this is justified

    Thanks

  6. himanshu says:

    I read your article on Tax Guru website regarding the implication of VAT on property.

    I have bought a flat in Bestech Parkview Delight in Dharuhera Haryana in January 2011. Now from the past 2 years I am chasing the builder ( Bestech Gurgaon) for registration of my property.

    In the year 2012 & 13 they were not doing registration because of enhanced EDC charges which was passed on to customer, so after taking possession I again paid them INR 92000 of enhanced EDC charges. Then I asked them to process my registration and from past 1 year they are telling me to again pay 4.2% of VAT charges on the total sales and then they will do the registration.

    I have also investigated that the other builders in Dharuhera are giving the possession and doing the registration without demanding any VAT charges.

    I need your guidance on what to do, even after taking possession from the past 3 years I am struggling to get my flat registered.

  7. Rupamanjari Sinha Ray says:

    your article has given me some light on the whole issue of Haryana VAT on real estate. I as a consumer has suddenly got a demand from the builder of Rs 1.45 lakh which right now I would be unable to pay. our flat has already been registered last year and the builder Bestech has not transferred the original paper to my financer LIC Housing Finance. now when we got to know this and enquired about this they are charging from us the amount of VAT and saying they will now only do so after i pay the money.
    i do not know what do i do? and where do i go?

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