CBIC’s 41 FAQs on GST Rate structure in Real Estate Sector from 01/04/2019

CBIC has issued 41 Clarifications on FAQs/ Issues relating to new GST rate structure notified for real estate sector applicable w.e.f. 01/04/2019.

CBIC’s 41 FAQs on GST Rate structure in Real Estate Sector from 01/04/2019 (dt. 07/05/2019)

A number of issues have been raised regarding the new GST rate structure notified for real estate sector effective from 01/04/2019. A compilation of Frequently Asked Questions (FAQs) is presented below. The answers to the FAQs have been given in simple language for guidance and easy understanding of all stakeholders in the real estate sector. They do not have force of law. In case of conflict, the gazette notifications, which have legal force, shall have precedence.

Q1. What are the rates of GST applicable on construction of residential apartments?

With effect from 01/04/2019, effective rate of GST applicable on construction of residential apartments by promoters in a real estate project are as under:

Description	Effective rate of GST*
Construction of affordable residential apartments	1% without ITC on total consideration.
Construction of residential apartments other than affordable residential apartments	5% without ITC on total consideration.

* after deduction of value of land

The above rates are effective from 01/04/2019 and are applicable to construction of residential apartments in a project which commences on or after 01/04/2019 as well as in on-going projects. However, in case of on-going project, the promoter has an option to pay GST at the old rates, i.e. at the effective rate of 8% on affordable residential apartments and effective rate of 12% on other than affordable residential apartments and, consequently, to avail permissible credit of inputs taxes; in such cases the promoter is also expected to pass the benefit of the credit availed by him to the buyers.

Q2. What is an affordable residential apartment?

Affordable residential apartment is a residential apartment in a project which commences on or after 01/04/2019, or in an ongoing project in respect of which the promoter has opted for new rate of 1% (effective from 01/04/2019) having carpet area upto 60 square meter in metropolitan cities and 90 square meter in cities or towns other than metropolitan cities and the gross amount charged for which, by the builder is not more than forty five lakhs rupees. [Cities or towns in the notification shall include all areas other than metropolitan city as defined, such as villages.]

In an ongoing project in respect of which the promoter has opted for new rates, the term also includes apartments being constructed under the specified housing schemes of Central or State Governments.

[Metropolitan cities are Bengaluru, Chennai, Delhi NCR (limited to Delhi, Noida, Greater Noida, Ghaziabad, Gurgaon, Faridabad), Hyderabad, Kolkata and Mumbai (whole of MMR) with their geographical limits prescribed by Government.]

Q3. What is an on-going project?

A project which meets the following conditions shall be considered as an ongoing project.

(a) Commencement certificate for the project, where required, has been issued by the competent authority on or before 31/03/2019, and it is certified by a registered architect, chartered engineer or a licensed surveyor that construction of the project has started (i.e. earthwork for site preparation for the project has been completed and excavation for foundation has started) on or before 31/03/2019.

(b) Where commencement certificate in respect of the project, is not required to be issued by the competent authority, it is to be certified by any of the authorities specified in (a) above that construction of the project has started on or before 31/03/2019.

(c) Completion certificate has not been issued or first occupation of the project has not taken place on or before 31/03/2019.

(d) Apartments of the project have been, partly or wholly, booked on or before 31/03/2019.

Q4. Does a promoter or a builder has option to pay tax at old rates of 8% & 12% with ITC?

Yes, but such an option is available in the case of an ongoing project. In case of such a project, the promoter or builder has option to pay GST at old effective rate of 8% and 12% with ITC.

To continue with the old rates, the promoter/ builder has to exercise one time option in the prescribed form and submit the same manually to the jurisdictional Commissioner by 10/05/2019.

However, in case where a promoter or builder does not exercise option in the prescribed form, it shall be deemed that he has opted for new rates in respect of ongoing projects and accordingly new rate of GST i.e. 5% / 1% shall be applicable and all the provisions of new scheme including transitional provisions shall be applied.

There is no such option available in case of projects which commence on or after 01/04/2019. Construction of residential apartments in projects commencing on or after 01/04/2019 shall compulsorily attract new rate of GST @ 1% or 5% without ITC.

Q5. What is the rate of GST applicable on construction of commercial apartments [shops, godowns, offices etc.] in a real estate project?

With effect from 01/04/2019, effective rate of GST, after deduction of value of land or undivided share of land, on construction of commercial apartments [shops, godowns, offices etc.] by promoter in real estate project are as under:

Description	Effective rate of GST*
Construction of commercial apartments in a Residential Real Estate Project (RREP), as explained in question no. 6 below, which commences on or after 01/04/2019 or in an ongoing project in respect of which the promoter has opted for new rates effective from 01/04/2019	5% without ITC on total consideration
Construction of commercial apartments in a Real Estate Project (REP) other than Residential Real Estate Project (RREP) or in an ongoing project in respect of which the promoter has opted for old rates	12% with ITC on total consideration.

* after deduction of value of land

Q6. What is a Residential Real Estate Project?

A “Residential Real Estate Project” means a “Real Estate Project” in which the carpet area of the commercial apartments is not more than 15 per cent of the total carpet area of all the apartments in the project.

Q7. What is the criteria to be used by an architect, a chartered engineer or a licensed surveyor for certifying that construction of the project has started by 31/03/2019? 

Construction of a project shall be considered to have been started on or before 31/03/2019, if the earthwork for site preparation for the project has been completed, and excavation for foundation has started on or before the 31/03/2019.

Q8. Does a promoter/ builder have to purchase all goods and services from registered suppliers only? 

A promoter shall purchase at least eighty percent. of the value of input and input services, from registered suppliers. For calculating this threshold, the value of services by way of grant of development rights, long term lease of land, floor space index, or the value of electricity, high speed diesel, motor spirit and natural gas used in construction of residential apartments in a project shall be excluded.

Q9. If value of purchases as prescribed above from registered supplier is less than 80%, what would be the applicable GST rate on such purchases?

Promoter has to pay GST @18% on reverse charge basis on all such inward supplies (to the extent short of 80% of inward supplies from registered supplier) except cement on which tax has to be paid (by the promoter on reverse charge basis) at the applicable rate, which at present is 28% (CGST 14% + SGST 14%).

Q10. In case of new rate of 5% / 1%, whether the conditions of payment of tax through Cash Ledger, payment of tax under RCM subject to 80% limit, non-availing of Input Tax Credit, reversal of credit, maintenance of project wise account, reporting of ITC not availed in corresponding GSTR-3B etc. are required to be complied mandatorily by the Developer ?

Yes. All the specified conditions against clause (i) to (id) of Sl. No 3 of Notification No. 11/2017 CTR are mandatory.

Q11. What is the rate of GST applicable on transfer of development rights, FSI and long term lease of land?

Supply of TDR or FSI or long term lease of land used for the construction of residential apartments in a project that are booked before issue of completion certificate or first occupation is exempt.

Supply of TDR or FSI or long term lease of land, on such value which is proportionate to construction of residential apartments that remain un-booked on the date of issue of completion certificate or first occupation, would attract GST at the rate of 18%, but the amount of tax shall be limited to1% or 5% of value of apartment depending upon whether the residential apartments for which such TDR or FSI is used, in the affordable residential apartment category or in other than affordable residential apartment.

TDR or FSI or long term lease of landused for construction of commercial apartments shall attract GST of 18%.

The above shall be applicable to supply of TDR or FSI or long term lease of land used in the new projects where new rate of 1% or 5% is applicable.

Q12. Who is liable to pay GST on TDR and floor space index? 

The promoter is liable to pay GST on TDR or floor space index supplied on or after 01/04/2019 on reverse charge basis.

Q13. At what point of time, the promoter should discharge its tax liability on TDR. 

The liability to pay GST on development rights shall arise on the date of completion or first occupation of the project, whichever is earlier. Therefore, promoter shall be liable to pay tax on reverse charge basis, on supply of TDR on or after 01/04/2019, which is attributable to the residential apartments that remain un-booked on the date of issuance of completion certificate, or first occupation of the project.

Q14. At what point of time, the promoter should discharge its tax liability on FSI (including additional FSI). 

On FSI received on or after 01/04/2019, the promoter should discharge his tax liability on FSI as under:

(i) In case of supply of FSI wherein consideration is in form of construction of commercial or residential apartments, liability to pay tax shall arise on date of issuance of Completion Certificate.

(ii) In case of supply of FSI wherein monetary consideration is paid by promoter, liability to pay tax shall arise on date of issuance of Completion Certificate only if such FSI is relatable to construction of residential apartments. However, liability to pay tax shall arise immediately if such FSI is relatable to construction of commercial apartments.

Q15. At what point of time, the promoter should discharge its tax liability on supply of long term lease. 

On long term lease received on or after 01/04/2019, the promoter should discharge his tax liability on long term lease as under: In case of supply of long term lease of land for construction of commercial apartments, tax shall be paid by the promoter immediately.

However, for construction of residential apartment, liability to pay tax onthe upfront amount payable for long term lease shall arise on the date of issuance of Completion Certificate.

Q16. Land development corporation of Orissa has provided land on long term lease for 99 years, for construction of a real estate project. As per the lease agreement, promoter has to pay an upfront amount of Rs. 10 Crore and annual/ monthly licence fee of 5 lakhs. Does the promoter has to pay GST on these amounts?

The liability to pay tax on Long term lease of land (30 years or more) received against consideration in the form of upfront amount and periodic licence fee is on the promoter. The promoter has to discharge tax liability on the same on RCM basis. However, the upfront amount payable for the long term lease (known as premium, salami, cost, price, development charges etc.) is exempt to the extent it is used for construction of residential apartments that are booked before issuance of completion certificate or first occupation.

Annual/ monthly rent or licence fee payable for long term lease is taxable under GST.

Q17. Someone booked a flat from XYZ Developers in June, 2018. As of 31/03/2019, he had paid 40 % of the value of the flat. What shall be the GST rate applicable on the remaining portion of value of the flat? 

GST on the remaining portion of the value of flat payable to the promoter on or after 01/04/2019 as per the contract between the promoter and buyer shall be payable at effective rate of 1% or 5%, subject to the condition that the builder has not exercised the option to pay tax on construction of apartments at the old rates of 12% or 18%. If the XYZ developer exercises option to continue to pay tax at old effective rate of 8% or 12% by 10/05/2019, then GST has to be paid @ 8% or 12% on remaining portion of the value of the flat; in such cases, the promoter would be entitled to permissible credit of input taxes and, as such, the price that he charges from the buyer should appropriately reflect this credit.

Q18. I am a beneficiary of PMAY-CLSS and carpet area of my house being constructed in an ongoing project is 150 sqm. Am I eligible for new rate of 1% on same? 

You are eligible for new GST rate of 1%, subject to the condition that the developer-promoter with whom you have booked the house has not exercised option to pay tax on construction of apartments at the old rate of 8%.

Q19. I am planning to purchase an apartment in a newly launched project. The project has been launched after 31/03/2019 by XYZ Developers at Noida. Price of the apartment having carpet area of 80 sqm is 48 lakhs. What is the rate of GST applicable on construction of this apartment? 

The tax rate applicable on construction of the apartments in a project that commences on or after 01/04/2019 would be 5%.

Q20. I have already paid tax of 12% (effective) on installments paid before 01/04/2019. I wish to get the benefit of new rate of 1% or 5%. Whether it is the builder or the buyer who has the option to pay tax at the new or old rates? 

The buyer cannot exercise option to pay tax at the new or old rates. It is the builder, who has to exercise the option to pay tax on construction of apartments at the old rate of 12% latest by 10/05/2019. If the builder doesn’t exercises his option to continue to pay tax at the old rate by the said date, then the effective GST rate applicable on all your installments payable to the builder on or after 01/04/2019 as per the contract shall be either 1% or 5%, depending on whether the apartment is an affordable or other than affordable residential apartment. (contd… please refer above attachment)