Saturday, November 25, 2017

Principle Of Mutuality v Tax Exemptiion (ADDS-on)

B/F
http://vswaminathan-swamilook.blogspot.in/2017/11/principle-of-mutuality-v-tax-eemption.html


A Supplement (More / to focus on the feedback- input):



srinivasan  says:
It should be taken per flat. Mr A will have 2 memberships Number for the two flats, and as a member of a flat it is only less than Rs5000.

This point additionally raised may have to be independently looked into, having regard to the applicable regulations, mainly governing ‘urban development’ and of the local state and other authorities. Offhand, as remembered, whether it is permissible for a single person- for that matter, even his ‘family’ members can purchase and hold more than one Flat in building complex, has always been a matter of grave doubt; may be, theoretically. Further, if scouted around, one may find instances in which tax issues have arisen and taken up for judicial adjudication; in particular, two Flats , as per approved Plan, have been , with no legal authorization, been converted into a composite one, but with different door numbers.
Incidentally, for a since Updated / modified Post, with additional Input, -on the main topic of ‘mutuality concept’ brought out in the earlier comments herein, suggest to look up – https://www.facebook.com/swaminathanv3/posts/1445208175555464

RIDER
The learned author’s study and his viewpoints shared may have been clear-cut and be of useful guidance, had he confined himself to the ongoing controversies only in so far as those relate to housing societies/ RWAs as indicated in the topic title itself. For, to repeat, then alone the distinct nature/true color of the controversy could have been better highlighted.

 
OFFHAND

The learned Advocate cum ‘expert on GST’, has to be appreciated in having made quite an extraordinarily painstaking attempt,- by going to town so to say,- to explain the several provisions of the extant service tax law, so also of the new GST Code more so, in the light of the stance taken/ continued to be taken by the Revenue, circulars issued , etc. In his endeavor, he has covered the various types of entities, apart from so called typical type of housing societies, by whatever name called, /RWAs, formed and managed by the members themselves, through elected/selected representatives among selves; and, wholly and exclusively for managing the in-house affairs. In fact, most of such housing societies/ RWAs are formed and administered, not out of individual volition, but rather under compulsion; and in accordance /compliance with the mandates of the special state laws,- for instance, in Karnataka, as per the KAOA (in short)and the Rules framed there under. It is in these circumstances, and further, having regard to the particular intricate implications of the said special laws, the view being strongly canvassed for, and fought for, for tax exemption, both under the erstwhile law and the GST Code, founded on the well accepted and established  “principle of mutuality’. With this aspect requiring special focus on, it could, in one’s long standing conviction, be very validly urged, and pursued; and needs to be so done, right to the finish.
TO make it explicit, -in so far as the ongoing debate pertains to housing complexes and its owners/residents -members,- what needs to be consciously noted and appreciated is that such persons or entities as constituted by them stand apart from, and are totally different from the rest of the cases bunched and discussed herein.
Of course, as prophesied by the learned author, in his wisdom, having regard to the simple fact that all attempts thus far made to dissuade the Revenue from pursuing its wrongful stance have met with no success, a righteous settlement of the dispute could only be expected to come in the form of a favorable judicial verdict.

There is no going saying that, such a hope could be expected to eventually fructify, provided the matter is addressed to the judiciary, on all fours, by formulating the propositions eminently, with honest home work.
Invite duly equipped Experts, in practice, tuned to the same wave length, to Edit / add value to the ongoing fight for a favorable settlement of the subject dispute; which, in one’s conviction, is nothing but on a non-issue, so to dub!

TAIL Note: The feedback input, available in plenty, in public domain, should, it is believed, be of great help in such an earnest and honest endeavor !


Apart from the limit per person, of Rs 5000,if remember right and not mistaken, the law provides for tax exemption, on the basis of total per entity. Suggest to, if so minded, wade through, the host of material in public domain, if need clarity on the point of doubt raised  but in a different vein!




Home  »  LegalSociety Accounting   »   Income Tax for Apartment Owners Associations
Q
Income Tax for Apartment Owners Associations
Posted in Legal, Society Accounting By san On September 25, 2009

Are Apartment Owners’ Associations in India liable to pay Income tax? Which income categories are taxable and which are exempt? Do they need to file tax returns every year? These are a must-know for every Association Treasurer. Here is an article compiled from reliable sources*, that wishes to be of help.
Income Tax laws and the “Concept of Mutuality”
Apartment Owners Associations are categorised as Associations of Persons (AOP) under the Income Tax Law.
The governing concept for applying income tax laws to the Association of Persons is the “Concept of Mutuality”. This concept means that the contributors to a fund and the beneficiaries of the fund – are identical. This in turn implies that there is no scope for individual profits or gains. Any surplus generated in this fund – which is income over expenditure – is held by the association for future utilization to the benefit of the contributors. Complete tax exemption is given to funds/surplus funds to which the “Concept of Mutuality” applies.
So, what is taxable and what is not?
Income NOT subject to tax:
Contribution from Members
Maintenance Charges, Electricity charges, Penalties, Interest charged on outstanding Maintenance Charges etc. – are the typical contribution by members of the Association. The association merely works as an agent that collects these charges and uses them for various common expenses. Any surplus during a fiscal year is carried forward to the next fiscal year, with no tax implications.
Interest earned from Co-operative Banks
If any investment is made in co-operative banks, the interest earned from such investment qualifies for deduction @ 100% under section 80P(d)
Dividend
If the Dividend income is received from Indian Companies, the dividend is fully exempt under section u/s 10 (34). Dividend received from Co-operative Banks qualifies for exemption under 80P(d) is therefore 100% deductible.
Rentals received from members for utilizing facilities
If common facilities such as community hall, open spaces, terrace etc., are rented out to members for a fees, the income is not taxable, thanks to “Concept of Mutuality”
Income subject to tax:
Interest earned on Investments in banks other than co-operative banks.
Any interest earned from banks which are not co-operative banks
Rental Income from Advertisement Hoardings
This is fully taxable under the head Business Income / Income from other sources. However expenses which can be directly attributable to earning of this income can be claimed against this income on a proportionate basis. Here the payer is responsible to deduct TDS from the payments made to the association.
Rental from Mobile / Cable Towers etc
Rental from mobile & Cable Towers is taxable under the head Income from House Property; considering the same it is eligible for standard deduction u/s 24 (a) @ 30 % of the rent. Also if the association has taken loan to build the tower structure, a proportionate deduction can be claimed for interest paid on borrowed capital.
Rentals from use of open Spaces / Terrace – received from non members
“Concept of Mutuality” does not apply to this Rental and it is fully taxable under the head Income from House Property & may qualify for deductions mentioned in point 3 above.
To conclude, it is a must for associations to get PAN registered in the name of the association and file Income Tax Returns regularly. Even if an association does not have taxable income due to deduction available (e.g., investments only in co-operative banks), it is necessary for the society to prove this, which is possible only with a Income Tax return filing.
Sources: Our thanks to CAclubindia, The Hindu andeleminds.
Are Apartment Owners Associations in India liable to pay Income Tax? Which income categories are taxable and which are exempt? Do they need to file tax returns every year? These are a must-know for every Association Treasurer. Here is an article compiled from various sources*, that wishes to be of help.

Income Tax laws and the “Concept of Mutuality”

Apartment Owners Associations are categorised as Associations of Persons (AOP) under the Income Tax Law.
The governing concept for applying income tax laws to the Association of Persons is the “Concept of Mutuality”. This concept means that the contributors to a fund and the beneficiaries of the fund – are identical. This in turn implies that there is no scope for individual profits or gains. Any surplus generated in this fund – which is income over expenditure – is held by the association for future utilization to the benefit of the contributors. Complete tax exemption is given to funds/surplus funds to which the “Concept of Mutuality” applies.

So, what is taxable and what is not?
Income NOT subject to tax
…………………………
UQ

Itatonline

Case law on mutuality



ITO vs. Gymkhana Club (ITAT Chandigarh)



OFFHAND
The ITAT has taken the view in favour of taxpayer, after considering , among others, the cited SC Judgment at length and in proper light.
As such, in cases such as a ‘CHS’, or any other entity, formed and constituted exclusively by the members of a building complex, and collections made by themselves for own in-house purposes, so also interest on surplus placed in bank deposits, it could be strongly urged, with eventual success, be eligible for tax exemption, on the ground of ‘mutuality’.
And, may have to be done so, both against any attempt at levy of ‘service tax’ / GST, and of income-tax as well.
For viewpoints likewise canvassed even before, refer the comment posted on this website wprt the Report of above referred SC Judgment.




(May be  CONTD.)

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