Telangana HC dismisses GST challenge, reshaping RE dynamics nationwide

13 Feb 2024 CW Team

Redevelopment projects play a pivotal role in the functionality of property markets, particularly amid rising land prices and diminishing availability of vacant land parcels in key urban centres.

This ruling is poised to transform the landscape of property development, influencing stakeholders and reshaping strategies within the real estate sector. The 18% GST levy on the value of development rights will render various projects in key markets like Mumbai, Pune, Bengaluru, Hyderabad, and Kolkata unfeasible for all stakeholders, including landowners.

Abhishek A Rastogi, founder of Rastogi Chambers, who represented the petitioner, remarked, "This is a significant industry issue that was likely to be resolved only before the Supreme Court. With several writ petitions on this issue pending in various courts, the industry will need to wait for some time to achieve tax certainty on this matter." He also indicated the possibility of challenging this decision in the Supreme Court.

The South India-based developer filed a writ petition in 2020 following a GST notification in 2019 that outlined the point of taxation for imposing tax on the transfer of development rights from the landowner to the realty developer. The petition argued that the authority effectively intended to tax a transaction similar to the sale of land.

Rastogi explained that the crucial point before the high court was whether GST is applicable in the case of a joint development agreement when there is a transfer of development rights from the landowners to the developer. The question revolved around whether the point of taxation to determine the timing of tax payment can be determined through a notification when the taxability of the transaction itself is disputed.

He added, "It must be noted that the sale of land is specifically excluded from the purview of GST as stamp duties are levied on these transactions. It was argued before the court that the transfer of development right is akin to the sale of land and hence should not be subject to GST."

In June, real estate developers expressed concerns to the Ministry of Finance about the impact of GST being levied on rehabilitation apartments being built and given back, free of cost, to existing occupants as part of redevelopment projects. The Confederation of Real Estate Developers' Association of India (CREDAI) - MCHI, wrote to Finance Minister Nirmala Sitharaman requesting a change in the GST structure to ensure the viability of redevelopment projects in the Mumbai Metropolitan Region (MMR).

Redevelopment and rehabilitation projects are crucial in Mumbai's property market, given the scarcity of vacant land parcels. Currently, around 19,000 properties in the city await redevelopment.

The Telangana High Court has issued a significant judgment by rejecting a legal challenge raised by a real estate developer against the imposition of Goods & Services Tax (GST) on the transfer of development rights within joint development agreements. This decision is expected to have far-reaching implications on major property markets nationwide, signalling a crucial shift in the cost dynamics of redevelopment projects. Redevelopment projects play a pivotal role in the functionality of property markets, particularly amid rising land prices and diminishing availability of vacant land parcels in key urban centres. This ruling is poised to transform the landscape of property development, influencing stakeholders and reshaping strategies within the real estate sector. The 18% GST levy on the value of development rights will render various projects in key markets like Mumbai, Pune, Bengaluru, Hyderabad, and Kolkata unfeasible for all stakeholders, including landowners. Abhishek A Rastogi, founder of Rastogi Chambers, who represented the petitioner, remarked, This is a significant industry issue that was likely to be resolved only before the Supreme Court. With several writ petitions on this issue pending in various courts, the industry will need to wait for some time to achieve tax certainty on this matter. He also indicated the possibility of challenging this decision in the Supreme Court. The South India-based developer filed a writ petition in 2020 following a GST notification in 2019 that outlined the point of taxation for imposing tax on the transfer of development rights from the landowner to the realty developer. The petition argued that the authority effectively intended to tax a transaction similar to the sale of land. Rastogi explained that the crucial point before the high court was whether GST is applicable in the case of a joint development agreement when there is a transfer of development rights from the landowners to the developer. The question revolved around whether the point of taxation to determine the timing of tax payment can be determined through a notification when the taxability of the transaction itself is disputed. He added, It must be noted that the sale of land is specifically excluded from the purview of GST as stamp duties are levied on these transactions. It was argued before the court that the transfer of development right is akin to the sale of land and hence should not be subject to GST. In June, real estate developers expressed concerns to the Ministry of Finance about the impact of GST being levied on rehabilitation apartments being built and given back, free of cost, to existing occupants as part of redevelopment projects. The Confederation of Real Estate Developers' Association of India (CREDAI) - MCHI, wrote to Finance Minister Nirmala Sitharaman requesting a change in the GST structure to ensure the viability of redevelopment projects in the Mumbai Metropolitan Region (MMR). Redevelopment and rehabilitation projects are crucial in Mumbai's property market, given the scarcity of vacant land parcels. Currently, around 19,000 properties in the city await redevelopment.

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