Page 127 - GSTL_13th August 2020_Vol 39_Part 2

2020 ] IN RE : APSARA CO-OPERATIVE HOUSING SOCIETY LTD. 213
the applicant for the benefit of its members will come under the scope of busi-
ness.
5.11 In view of the above we are of the opinion that all the conditions
stipulated for considering the activities of applicant as “Supply” under the GST
Law have been fulfilled.
5.12 Applicant has contended that the Applicant Society and its mem-
bers cannot be treated as distinct persons, by citing the “principle of mutuality”.
We have already found above that both, the Applicant as well as its members are
to be considered as separate person. The contention made by the Applicant with
regard to the principle of mutuality to establish their claim that the Applicant
Society and its member are not distinct entity is not tenable in so far as taxability
in the GST regime is concerned.
5.13 We now reproduce the relevant portion of Circular No.
109/28/2019-GST, dated 22-7-2019, issued vide F. No. 332/04/2017-TRU by the
Government of India which is as below :-

Sr. Issue Clarification
No.
1 Are the maintenance Supply of service by RWA (unincorporated
charges paid by body or a non-profit entity registered under
residents to the any law) to its own members by way of reim-
Resident Welfare bursement of charges or share of contribution
Association (RWA) up to an amount of Rs. 7500 per month per
in a housing society member for providing services and goods for
exempt from GST the common use of its members in a housing
and if yes, is there society or a residential complex are exempt
an upper limit on from GST.
the amount of such Prior to 25th January, 2018, the exemption was
charges for the ex- available if the charges or share of contribution
emption to be avail- did not exceed Rs. 5000/- per month per mem-
able? ber. The limit was increased to Rs. 7500/- per
month per member with effect from 25th Janu-
ary, 2018. [Refer clause (c) of Sl. No. 77 to the
Notification No. 12/2017-Central Tax (Rate),
dated 28-6-2017]

5.13.1 A reading of the said circular makes it clearly evident that it is
the intention of the Government to tax Housing Societies under GST Laws sub-
ject to the condition that the reimbursement of charges or share of contribution of
the members exceed an amount of Rs. 7500/- per month per member for Supply
of service rerdered by Resident Welfare Association (unincorporated body or a
non-profit entity registered under any law) to its own members.
5.14 The applicant has submitted the following case laws in support of their
contention that activities carried out by them for their members are not liable to GST.
(a) Decision of the Hon’ble Supreme Court in the case of Income Tax Of-
ficer, Mumbai v. Venkatesh Promises Co-operative Society Limited.
(b) Full Bench Judgment of the Hon’ble Guajarat High Court in the case
of Commissioner of Income Tax v. Prabhukunj Co-operative Housing So-
ciety Ltd.

GST LAW TIMES  13th August 2020  127