TMI Blog2023 (5) TMI 748X X X X Extracts X X X X X X X X Extracts X X X X ..... ceipt of the completion certificate? Whether parking space open or covered along with construction services of the apartment will be a bundled service as argued by the Appellant? - HELD THAT:- It transpires from plain reading of the above provisions of RERA that though a sanctioned plan requires inclusion of parking layout, an uncovered parking space such as open parking area is not included in the definition of garage but falls within the meaning of common area . Now the common area belongs to all apartment owners jointly or the owners association when formed and no portion can be sold/transferred/leased out to any person by the promoter - So in the instant case the sanctioned plan may have open parking spaces but the Appellant has no right to transfer ownership or lease out or allow right to use of the said spaces to allottees. The owners association on joint agreement of its members may lease out the open parking space on rent at a future date but that question is beyond the ambit of the current discussion. The amount charged by the appellant for right to use of car/two wheeler vehicle parking space, though not permissible as per RERA, constitutes a separate supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use of car/two wheeler vehicle parking space along with the sale of under constructed apartments to its prospective buyers is to be treated as a composite supply of construction of residential apartment services or the same is a distinct supply under section 7 of the CGST/WBGST Act, 2017. (b) If the same is not to be treated as a composite supply, then the rate of tax applicable on such charges collected by the applicant from its prospective customers. (c) If such apartments are sold after receipt of completion certificate from the competent authority, then whether the amounts collected for right to use of car parking space will also be treated as a non GST supply under Schedule III of the CGST/WBGST Act, 2017 and no GST shall be payable on the amounts charged towards such right to use car parking space. (d) Whether the taxability would change if such charges for right to use of car parking space is collected after the sale of the apartment has been done i.e. the customer had not opted for the car parking space at the time of purchase of the under constructed unit, but had sought for the same after the unit was handed over to the customer after receipt of the comple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss/opt for a residential unit inside the project area and stamp duty is paid on the entire consideration charged by the Applicant towards the unit price of the apartment and car parking space at the time of conveyance of the said property. e) The WBAAR erred in stating that the Circular No. 177/09/2022-TRU dated 03.08.2022 was not applicable in the instant case as the said Circular dealt with leasing transactions while the instant case is a matter of construction services. 6. During the course of hearing held on 28.03.2023, the Appellant s authorized representative reiterated the points as stated in the Grounds of Appeal. The Appellant is in the business of constructing residential housing projects and one such project is Eden City Maheshtala which has multiple towers in different stages of completion with both covered and open car parking facilities. The prospective buyers can opt for car parking facility at the time of booking apartments or at a later date. This option is open only to a prospective buyer of apartment or an existing apartment owner. No person without booking/possessing an apartment in the project can avail this facility. The Appellant is not treating open ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re of the composite supply and which element of the supply imparts that essential nature of the composite supply . It was further clarified in case of re-treading tyres the essential supply was the service of re-treading and the supply of rubber in the process was an ancillary supply. In line with this argument the Appellant s authorized representative stressed on the point that the facility of right to use of open parking space is naturally bundled with the construction services for /sale of apartment. 8. The Appellant s authorized representative also relied on the rulings given by both WBAAR and WBAAAR in the matter of M/s Bengal Peerless Housing Development Co. Ltd. where both agreed that car parking space was ancillary supply to the principal supply of construction services for apartment. In view of this observation the Appellant s authorized representative argued that the construction services for the apartment together with the right to use of open parking space is a bundled supply and will attract tax of that of the principal supply and will also qualify for the abatement given on the value of land for both principal and ancillary supply. Thus in case of an apartment sold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llotted, sold (whether as freehold or leasehold) or otherwise transferred by the promoter, and includes the person who subsequently acquires the said allotment through sale, transfer or otherwise but does not include a person to whom such plot, apartment or building, as the case may be, is given on rent common area [sub-section (n) of section 2] means (i) the entire land for the real estate project or where the project is developed in phases and registration under this Act is sought for a phase, the entire land for that phase; (ii) the stair cases, lifts, staircase and lift lobbies, fire escapes, and common entrances and exits of buildings; (iii) the common basements, terraces, parks, play areas, open parking areas and common storage spaces; (iv) the premises for the lodging of persons employed for the management of the property including accommodation for watch and ward staffs or for the lodging of community service personnel; (v) installations of central services such as electricity, gas, water and sanitation, air-conditioning and incinerating, system for water conservation and renewable energy; (vi) the water tanks, sumps, motors, fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sidered in the valuation of apartment and one-third abatement on supply of construction services is being availed before levy of tax under the GST Act. 15. Further, it has been submitted by the appellants that their prospective buyers are given an option to opt for car parking space along with the apartment being booked by the customers and accordingly, the customers who opt for availing the car parking facility also, are charged a certain sum towards the car parking space. A customer of a flat may avail car parking facility even after the issuance of completion certificate of the project. A customer may choose to opt or not opt for car parking at the time of purchase/booking of an apartment. 16. As per Sec 2(30) of the GST Act, ― composite supply means a supply made by a taxable person to a recipient consisting of two or more taxable supplies of goods or services or both, or any combination thereof, which are naturally bundled and supplied in conjunction with each other in the ordinary course of business, one of which is a principal supply; 17. So, it is evident that sale/right to use car parking service and construction services are separate services which are not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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