In all the notifications under this new rate-regime, there’s no mention of TDR-Certificates. View held so far, that TDR-Certificates are actionable claim appear to continue and can be argued to be nontaxable.
Previously, revenue-sharing JDA attracted tax on development rights on forward charge basis, without the benefit of deferment of time of supply (as 4/2018 dated 25th January 2018 was never applicable).
Now, revenue-sharing JDA is rescued from this incidence, but only in case of development that’s ‘for sale’. Development that’s ‘not for sale’ (for rental returns) will attract previous rate-regime on supply of development rights i.e. 04/2018 dated 25th January, 2018.
Though REP is defined in RERA, RREP is not defined. 03/2019 defines RREP as ‘REP with commercial carpet area (CCA) not greater than 15% of total carpet area (TCA)’ which works out to be 17.64% of developed residential area. So, based on this definition, commercial apartments are allowed concessional rate of 7.5% under the new rate-regime. Further, if RREP has CCA > 15% of TCA, then the project does not qualify for the new rate-regime.
Special dispensation is made available to pay GST on construction service by a Developer to Landowner on the date of OC/CC under 06/2019 dated 29th March, 2019. But, where the units are offered for sale before OC/CC, out of Landowner’s share of units, this special dispensation is forfeited. And Developer is required to pay tax on intermittent supply to the extent of these units offered for sale by Landowner. GST applicable is at 1.5% or 7.5% on 2/3P on ‘percentage of completion’ basis, and Landowner to charge GST at 1.5% or 7.5% to Buyer but with special benefit of off-set with tax paid earlier by Developer.