Karnataka VAT Implications on Real Estate Sector PRESENTATION BY-: CA. SANJAY DHARIWAL MOBILE NO-9972070601 sanjay@dnsconsulting.net

Synopsis Introduction Works Contract- Legislative History Dealer – sec 2 (12) (g) Works contract – sec 2 (37) Sale – sec 2 (29) (b) Time of sale – Sec 7 Determination of turnover – Rule 3(1) & 3(2) – Regular scheme Composition scheme Issues and documentation for Joint development

Works contract- legislative history What constitute contract of sale and distinguishing from a works contract – subject matter of litigation in India Power of State Government to levy sales tax on indivisible/composite works contract Levy was confined only to levy sales tax on sale or purchase of goods In Gannon Dunkerley-I (SC) stated that WC was an agreement where property passes from the seller to the buyer under the theory of accretion i.e In case of an agreement for construction of building, the property in goods involved in the construction of such building passed to the buyer of the building not in form of goods but as part of the building

Works contract- legislative history Resulted in avoidance of tax in various ways as divisible contracts were leviable and indivisible contracts were not leviable The matter was referred to law commission (61st report) Accordingly Amendment was made by inserting Article 366(29A) which includes tax on the transfer of property in goods (whether as goods or some other form) involved in the execution of a works contract. SC in Builder Association considered the challenges to opine that the amendment was valid. The works contract which was indivisible by legal fiction can be divided into one for sale of goods and other for supply of services Gannon Dunkerley-II laid the critical test for valuation for the purposes of such levy and states formulated valuation rules.

Raheja Case Levy of sales tax in case of property development The appellants carried the business of real estate development and allied contracts They enter into development agreement with owners of lands. After approval of plan they construct and enter into agreements of sale with intended purchasers. The agreement also provided that intended purchaser would also get undivided interest in land also. The issue is whether developer is liable to pay sales tax???????

Analysis of Raheja Case The definition of Works contract is very wide “Any agreement for carrying out either for cash or for deferred payment or for any other valuable consideration the building or construction of any movable and immovable property” The definition does not restrict that construction should be for owner of property Therefore there is levy of sales tax on the agreements entered prior to the completion of construction This decision was against the line of decisions with the tax payers A factual position similar to Raheja came before SC in L&T

Construction contracts Analysis of Larsen and Toubro Case (Civil Appeal No 8672 of 2013) Two judge bench of L&T doubted the correctness of Raheja case It was referred for reconsideration to Larger bench for following reasons The developer had undertaken to develop the property of owner. If the development agreement is not a works contract could the department rely upon tripartite agreement and consider it as works contract. If ratio of Raheja is accepted then no difference between works contract and contract for sale of chattel The contractor has undertaken work of construction for prospective flat purchaser

Construction contracts Analysis of Larsen and Toubro Case (Civil Appeal No 8672 of 2013) Arguments placed by petitioners As per tripartite agreement main object is to sell and convey fraction of land together with constructed flat after all the installments are paid The construction is not carried for the purchaser but carried out by owner to exploit best prices The flat is sold as flats and not as aggregate of component parts The title to the property is taken only after the work is complete The developer will not undertake construction on behalf of flat buyers, even the constructions are done without pre booking The developer is not the contractor of the flat purchaser

Construction contracts Analysis of Larsen and Toubro Case (Civil Appeal No 8672 of 2013) The flat purchaser does not have any role in conceptualizing the project Ownership of material remains with contractor and it passes only on conveyance of flat. Accretion happens in hands of developer and not in hands of buyer. When constructed flat is transferred or sold it becomes sale of immovable property and theory of accretion does not arise. The construction linked payment schedule is nothing but a method of payment of installments.

Construction contracts Analysis of Larsen and Toubro Case (Civil Appeal No 8672 of 2013) Arguments placed by States Views taken in Raheja is correct and needs no reconsideration Article 366(29A) of Constitution of India has been inserted to bring remedy arising from decision of Gannon Dunkrely-1 where levying tax on works contract was unconstitutional Three conditions is that there must be works contract, the goods have been involved in execution of contract and the property in those goods must have been transferred to a third party either as goods or in some other form The term works contract means a contract in which one of the parties is obliged to undertake or execute works.

Construction contracts Analysis of Larsen and Toubro Case (Civil Appeal No 8672 of 2013) Arguments placed by States There is no question of ascertaining the dominant intention of the contract as sale of goods element is deemed sale under Article 366(29-A) (b) and can be taxed separately . The transfer of immovable property cannot be taxed as sale of goods but there is no constitutional bar to tax only the sale of goods element and separately tax the transfer of immovable property.

Construction contracts Analysis of Larsen and Toubro Case (Civil Appeal No 8672 of 2013) Supreme Court Ruling When an agreement is entered into between promoter and the flat purchaser to construct a flat and eventually sell the flat, the said activity is works contract. All the conditions of works contract are satisfied Goods in some other form means goods have ceased to be chattels or movables and become attached to earth. Therefore goods which have by incorporation become part of immovable property are deemed as goods. Building contracts are species of the works contract. The dominant nature test has no aplication

Construction contracts Analysis of Larsen and Toubro Case (Civil Appeal No 8672 of 2013) Supreme Court Ruling In Tripartite agreement between owner of land, the developer and the flat purchaser it is a composite contract comprising both works contract and sale of immovable property If the builder has undertaken to build for the prospective buyer and then to that extent it is works contract The activity of construction undertaken by the developer would be works contract only from the stage the developer enters into a contract with the flat purchaser.

Construction contracts Analysis of Larsen and Toubro Case (Civil Appeal No 8672 of 2013) Supreme Court Ruling In Tripartite agreement between owner of land, the developer and the flat purchaser it is a composite contract comprising both works contract and sale of immovable property If the builder has undertaken to build for the prospective buyer and then to that extent it is works contract The activity of construction undertaken by the developer would be works contract only from the stage the developer enters into a contract with the flat purchaser.

Challenges Levy of VAT on agreements for sale of under construction property The above decision will lead to double taxation by the contractor and sub contractor There is no principle of accretion by the developer when there is back to back contract with the contractor but still based on the above decision even developer is liable to offer the tax under the VAT law. The aspects of Monetary consideration has not been considered when there is an exchange of land against the super built up area Therefore the construction activity is treated as works contract and accordingly there will be implication of VAT on the tripate agreement which also includes landlord share.

KVAT Law for Works Contractor: Dealer under Sec 2(12)(g) includes a person engaged in the business of transfer of property in goods Whether as goods or in some other form Involved in the execution of a works contract. Works contract includes - Sec 2 (37) any agreement for carrying out for cash, deferred payment or other valuable consideration the building, construction, manufacture, processing, fabrication, erection, installation, fitting out, improvement, modification, repair or commissioning of any movable or immovable property Sale as per sec 2(29)(b) includes a transfer of property In goods Whether as goods or in some other form involved in the execution of a works contract;

Time of Sale Sale is deemed to taken place at the time of transfer of title/possession or incorporation of goods in any works contract irrespective of receipt of payment. The sale of goods is deemed to have taken place at the time of incorporation of goods in the course of execution of any WC whether or not there is receipt of money. If Tax Invoice is issued within 14 days – sale deemed to have taken place at the time of issue of Tax Invoice. Alternately – Tax Invoice or payment – earlier of the two events will determine the time of sale.

Time of Sale Notwithstanding anything contained in the Sale of Goods Act, 1930 For the purpose of this Act, and subject to section 7(2),the sale of goods shall be deemed to have taken place at the time of transfer of title or possession or incorporation of the goods in the course of execution of any works contract whether or not there is receipt of payment Explanation to Rule 3(1) defers taxation of advance till the commencement of contract [Both Explanation and section 7 are unconstitutional : Nagarjuna Construction 2010 (69) Kar. L.J. 97 (HC)

Treatment of Advance Received any amount paid as advance to a dealer as a part of consideration for transfer of property in goods (whether as goods or in some other form) involved in the execution of works contract Included in the total turnover in the month in which execution of such works contract commences.

Taxable Event under Works Contract The observation of the Supreme Court in Builder’s Association’s case – the taxable event takes place as and when materials are used or supplied, i.e., incorporating to the contract in the execution thereof every time the incorporation of goods takes place in the works contract, the taxable event takes place.

rate of Tax Section 4 in respect of transfer of property in goods (whether as goods or in some other form) involved in the execution of works contract specified in column (2) of the Sixth Schedule, Subject to Sections 14 and 15 of the CST Act, 1956, at the rates specified in the corresponding entries in column (3) of the said Schedule.

rate of Tax The Sixth Schedule provides class of works contract liable at 5.5%,14.5%. Thus a works contractor will have to pay an output tax at the rates mentioned in Sixth Schedule in spite of having purchased materials at different rates of taxes (like 5.5%, 14.5%) Except in case of iron and steel (declared goods), wherein output tax is payable at the rate of 5% only.

Determination of Total Turnover-Regular scheme Total Turnover (Rule 3(1)) The total amount paid or payable to the dealer as the consideration for transfer of property in goods (whether as goods or in some other form) involved in the execution of works contract including any amount paid as advance to the dealer as a part of such consideration” Explanation to Rule 3(1) – “the amount paid as advance to a dealer as a part of consideration for transfer of property in goods involved in execution of works contract shall be included in his total turnover in the month in which execution of such works contract commences” It means advances received prior to commencement of works contract shall not be liable to tax under the Act.(Nagarjuna Construction Case)

Deductions from the total turnover All amounts collected by way of tax under the act All amounts paid to sub-contractors as the consideration for execution of works contract whether wholly or partly. Provided that, no such deduction shall be allowed unless the dealer claiming deduction produces documents in proof that the sub-contractor is a registered dealer liable to pay tax under the Act and that the turnover of such amounts is included in the return filed by such sub contractor. Not. No FD 39 CSL 2011 dated 24.8.2011 add the proviso that provided further that no such deduction shall be made where deduction of input tax is claimed in respect of tax paid to any sub contractor.

Deductions from the total turnover All amounts actually expended towards labour charges and other like charges not involving any transfer of property in goods in connection with the execution of works contract including charges incurred for erection, installation, fixing, fitting out or commissioning of the goods used in the execution.(Rule 3(2)(l)) When labour and other like charges incurred are not ascertainable from the books of accounts maintained by a dealer, then such amounts is calculated at the rate specified in this rule.(Rule 3(2)(m))

Deductions from the total turnover Amendment of rule 3.- In the Karnataka Value Added Tax Rules, 2005 (hereinafter referred to as the said rules), in sub-rule (2) of rule 3,- (1) in clause (m), after the table, the following proviso shall be inserted, namely:- “Provided that where any deduction is allowed under this clause, then input tax shall not be allowed in respect of tax paid on charges for obtaining, on hire or otherwise, machinery and tools and on purchase of consumables, used in the execution of works contract.” ;

Deductions from the total turnover Explanation 1 to Rule 3(2)(l) state that In the case of a dealer executing works contract in determining the taxable turnover during any tax period, the deduction under clause (l) shall be allowed so that such deduction is proportionate to the value of goods, the property in which has been transferred in the execution of works contract in that period and if the total turnover is not sufficient to cover apart from other deductions, such taxable turnover and such deduction, they shall be determined and allowed proportionately to the extent of the turnover of the dealer in that period and the balance shall be carried forward to the following tax period or any subsequent tax period to be determined and allowed in the same manner.

Deductions from the total turnover Explanation 2 to Rule 3(2)(l) state that labour and like charges include charges for obtaining on hire or otherwise machinery and tools used in the execution of a works contract , charges for planning, designing and architect fees, cost of consumables used in the execution of the works contract, cost of establishment to the extent relatable to supply of labour and services and other similar expenses relatable to supply of labour and services. L&T Vs State of Karnataka (HC) (STRP 8/2006)(2.9.2009) Depreciation on plant and machinery is allowed

Deductions from the total turnover Explanation 3 to Rule 3(2)(l) state that gross profit earned by a dealer shall be apportionable to the value of the goods and labour and other like charges involved in the execution of works contract in the same ratio as in the total turnover Based on explanation I, how the proportionate labour and like charges will be computed based on ratio of taxable turnover which will be determined after deduction of labour and like charges? Whether indirect expenses relatable to works contract can be claimed as labour and like charges? How to estimate the gross profit in advance before completion of the project?

DEDUCTIONS TOWARDS SUB CONTRACTOR Rule 3(2) (i-1) states that all amounts paid or payable to sub contractors as the consideration for execution of works contract whether wholly or partly. Provided that no such deduction shall be allowed unless the dealer claiming deduction produces document in proof that the sub contractor is a registered dealer liable to pay the tax under the Act and the turnover of such amounts is included in the return filed by such sub contractor. Provided further that no such deduction shall be made where deduction of input tax is claimed in respect of tax paid to any sub contractor.

DEDUCTIONS TOWARDS SUB CONTRACTOR Section 15(5)(b) of KVAT Act states that in the case of a dealer executing works contracts and opting for composition of tax under sub section (1), no tax by way of composition shall be payable on the amounts payable or paid to a sub contractor as consideration for execution of works contract whether wholly or partly and such amounts shall be deducted from the total consideration of the works contracts executed on which an amount as notified is payable under sub section (1) by way of composition in lieu of tax payable under the Act subject to production of proof that such sub contractor is registered dealer liable to tax under the Act and that such amounts are included in the return filed by such sub contractor.

DECLARED GOODS AND WORKS CONTARCT Based on a constitutional privilege provided to the Central Government, Section 14 and Section 15 of the CST Act has been enacted, to identify what is called “Declared Goods “ or goods of Special importance. Such goods cannot be put to tax beyond 5%. In case of M/S NAGARJUNA CONSTRUCTION AND OTHER DEALERS VS STATE OF KARNATAKA ((WRIT PETITION 29932- 33/2009)(T-KST)AND OTHERS (HC), The petitioners had filed the writ petition before the High Court to challenge the constitutional validity of section 4(1)(C ) and Schedule VI, Item 23 of the KVAT Act 2003 and the Explanation appended to Rule 3(1) of the KVAT Rules 2005. Circular 13/2009

URD PURCHASES Though tax at 12.5% is applicable under serial Number 23 of the sixth schedule of the Act in respect of composite works contracts involving transfer of property in goods, an exception is provided in section 4(1)( C) of the KVAT Act itself, that in respect of declared goods involved in the execution of works contracts, the rate of tax shall be as provided in section 14 of the CST Act at 4%. Thus as regards iron and steel products used in execution of works contract, the levy of tax shall be at 5% only on the value thereof. State of Karnataka v/s Mahaveer Willow JP Nagar 6th phase Bangalore 2014 78 Kar L.J 305 (HC) (DB) dated 13.2.2014

Composition dealer – Section 15 Applicable to dealers of various kinds like, notified dealer upto 50 lakh(Currently it is 25 lakh) Works Contractor, Hotelier, Restaurateur, Caterer, Sweet meat stall,, Ice cream Parlor, bakery , or other class of dealers as notified Mechanized crushing unit producing granite or any other metal, etc.

Composition dealer – Section 15 Notification : Notification No FD 116 CSL 2006(13), Bangalore dated 31.3.2006 1. In respect of a dealer executing works contract at the rate of four percent on the total consideration for the works contract executed by him

Composition dealer – Section 15 Composition scheme – Works contractor The law allows such scheme to a dealer executing Works Contract irrespective of his turnover. Such civil works contractor can collect Composition tax Input tax credit is not permissible. Rate of tax at 4% on Gross consideration(Receipts) Actual or Adhoc deductions towards labour not allowed

Tax on Interstate purchase at local rate Deductions towards subcontractor payment URD tax with effect from 01.04.2006 Issue of Bill of sale Option for composition for one eligible business even if other business is non composition (Retail business and not works contract business)

Particulars Amount BASIC DATA   Contract Receipt during the month 5000 URD Purchases @ 5%(assume) 600 URD Purchases @ 14%(assume) 750 Interstate purchase(5% assume) 1000 Interstate purchase (14% assume) 400 Sub Contractor payments 700

Computation of composition tax Particulars Amount Tax payable Contract Receipt during the month 5000   Less Sub Contractor payments 700 Interstate purchase(5%) 1000 Interstate purchase (14%) 400 Turnover for tax 2900 Composition tax(4%) 116 Add URD Purchases @ 5% 600 30 URD Purchases @ 14% 750 105 50 56 Total tax payable 357

Voluntary withdrawal from COT scheme : In order to avoid frequent changes from full VAT to Composition, there is a restriction of a minimum retention of 12 months as a registered dealer under full VAT; If tax is being paid under regular scheme, at least 12 months tax under regular scheme must be paid. He should not be registered under composition scheme during the preceding period of 12 months. Dealer has to be in composition scheme for at least 12 months and then he may shift to regular scheme. Dealer can make payment of tax under regular scheme immediately succeeding the month in which he withdrew from composition scheme. Dealer need not to wait for any certificate from the jurisdictional Local VAT officer.

Tax issues WC cannot purchase capital goods from outside the State; WC cannot sell goods outside the State but can stock transfer to a place outside the State [Refer wordings of Rule 135(5)] Dealer is liable to pay tax on the value of goods at the appropriate rate specified in section 4 (at 1%, 4%, 5%, 13.5%,14.5% etc.) and such value of goods shall be deducted from the total consideration of works contracts. Department contends that value of goods means “Sale price” of such goods

Composition dealer If a works contractor who has opted to pay tax under the composition scheme subsequently sells away the goods purchased by him (other than by way of transfer of property in such goods [whether as goods or in some other form]) he will be liable to pay tax on the value of such goods at the rate specified in section 4 without any input tax set off.

LAND DEDUCTION Deduction of land cost:  Transaction in land does not attract VAT being an immovable property. Difficult to claim land deduction in case of single contracts –unless value separately mentioned. However issue is around the value to be adopted towards the land Market value as on the agreement date Future sale value -as on the sale deed date, Procurement cost, Guidance value High scrutiny of value of contract attributed to the land portion likely -advisable to document basis for valuation of land. Challenge also in appropriating initial payments towards value of land and value of construction Price sheet and terms in the Agreement crucial

PARTICULARS   REGUALAR SCHEME COMPOSITION SCHEME SALE CONSIDERATION FLATS FOR SALE 145 LANDLORD SHARE 38 OWNED SHARE 17 TOTAL FLATS 200 TOTAL CONSIDERATION( 145 flats) 126150000 TOTAL FLATS COST 870000

PARTICULARS   REGUALAR SCHEME COMPOSITION SCHEME LAND COST PER FLAT(37.5%) (CIRCULAR FOR JD-VAT) CONSTRUCTION COST PER FLAT 870000 RATE OF TAX 14.50% 4.00% LABOUR AND LIKE CHARGES (ADHOC) 30% 231000 SUB CONTRACTOR DEDUCTIONS (Registered) 100000 UNREGISTERED PURCHASE(20%) 174000 INTERSTATE PURCHASE(15%) 130500 TAXABLE TURNOVER 539000 639500 VAT TAX AND COMPOSITION TAX 78155 25580

PARTICULARS   REGUALAR SCHEME COMPOSITION SCHEME INTERSTATE PURCHASE TAX 18923 UNREGISTERED TAX 9570 INPUT TAX CREDIT 14.5% PURCHASE 21750 5.5% PURCHASE 4125 INTERSTATE PURCHASE (NO CREDIT) NET TAX PAYABLE PER FLAT 52280 54073 NUMBER OF FLATS 145 TOTAL NET TAX PAYABLE 7580600 7840513 FOR 145 FLATS

Construction contracts Commissioner Circular- December 2009 Circular 11/2009 Sale consideration towards undivided interest in land is always excludible Deduction towards sub contractor for 2005-2006 is also allowable Carrying forward of unadjusted deductions towards labour and like charges to next tax period or next year Amounts collected as BWSSB and KPTCL deposits, stamp duty, etc. Most of the builders and developers collect amounts from customers towards BWSSB and KPTCL deposits, stamp duty, registration fee, service tax, etc.

Construction contracts Commissioner Circular- December 2009 Circular 12/2009 Agreements for sale of constructed building : Reference of K Raheja Development Corporation Vs State of Karnataka (reported in 141 STC 298) Agreements for sale of constructed buildings – Department has clarified that any kind of agreement entered by the developer before completion of construction would amount to works contract. (K Raheja Judgment still holds good. (L & T judgment not referred) Analysis of K Raheja and L& T

Circular No.12 /2009-10 While determining the taxable turnover, amount received towards UDI from the customer is claimed as deduction; In the circular it is stated that the agreement between the land owner and the developer towards construction of building(s) amounts to works contract. Both Regular and Composition dealers are subject to tax in respect of Joint Development agreement to the extent of land obtained from the land owner. The amount received from the customer towards UDI shall be construed as amount received from the land owner towards construction of his share in the project;

Circular No. 12 /2009-10 In case the UDI portion is not determinable then the value declared with the appropriate authorities should be considered; In case the value of UDI is not declared separately at the time of registration, then the amount fixed under the relevant law should be considered. In the hands of the Land Owner: The aggregate amount received from his customer by the developer on behalf of the land owner The aggregate amount declared by the developer to be the value of UDI land transferred to the customers with whom he has entered into an agreement;

Circular No. 12 /2009-10 The aggregate amount fixed under the relevant law as the value of UDI land transferred to the customer with whom he has entered into construction agreement.

Commissioner Circular 12/2009 Assessment of tax in cases of Joint development agreements Developer will be liable on the transfer of property in goods involved in execution of such civil works contract of construction of building Developer declares only the part of the amount received from the customers He would not declare the balance amount towards transfer of UDS against the built up area to landowner As no consideration is received no tax is offered on landlord share On the date of handing over possession of the landowner share If landlord entered agreements then landlord also can offer the tax

JUDICIAL DECISIONS Krishvi Projects Private Limited Bangalore Vs State of Karnataka 2014(78) Kar.L.J. 307 (HC)(DB) dated 13.2.2014/ Vaswani Estate Developers Private Limited Bangalore Vs State of Karnataka (HC) (DB) dated 17/2/2014   Issues raised by Division bench in case of Joint development agreement between the owner and the builder wherein landowner delivers piece of land and builder in consideration thereof has to construct the apartments and deliver to landlord in the ratio agreed. Prima question to be answered is who is liable to pay tax on the materials used in the execution of the contract. Undisputed fact is that these questions not considered and answered by the tribunal. It is held that these matters remanded back to Karnataka Appellate Tribunal with a direction to consider these questions.

JUDICIAL DECISIONS Questions: Whether the land price will get included in the amount of total receipt on the occasion of paying tax as per composition scheme in building works contract? Whether the nature of transactions/joint development agreement between the landowner and the developer in the present case would oblige either of them to pay tax on the transfer of goods involved in the execution of works contract in respect of developer share and or landlord share and if yes who has to pay tax?

JUDICIAL DECISIONS Questions: Whether the transaction/joint development agreement between the landowner and the developer is a barter by which the landowner delivers the agreed upon share of the land to the builder and in consideration thereof requires the builder to construct apartments in his (landowner) share of land and deliver to him as a part of consideration amount to sale within the definition of section 2(29) of KVAT Act 2003 and if yes who is liable to pay tax on the material/goods involved in execution of the works contract?

Tax issues Development charges- Continental Builders case- liable to VAT to the extent of material transferred. Revenue sharing models Sales return for works contract Agreement to sale/Sale Agreement/Joint development agreement- Effect of taxes Deduction for undivided share of interest in land Restriction of input tax credit and sub contractor pertaining to landowner share? Whether exchange of land against the constructed area liable to tax? Monthly Assessments/Time of raising Invoice by Works contractor

TAX ISSUES Whether Composition tax be paid on the Gross amount or after deduction of land cost ?. What is the land value be deducted – as per guided value or market value based on certificate issued by Chartered Engineer ?. Whether VAT is payable on the portion of the owners share as on the date of handing over possession of the building to the owner in case of JDA ?.  How to compute the consideration of land value in case of joint development of property ?.  In case of JDA, how the input tax credit be accounted for ?. In case of reversal of the input tax portion relating to land owner under JDA, what is the method of calculation for reversal ?.

Thank you sanjay@dnsconsulting.net