Property owners collect security deposit from tenants while renting out immovable property. Such deposit is refundable (usually, with no interest) to the tenant at the end of lease term / while vacating the premises, subject to deductions as per the terms of agreement between the tenant and the property owner. Hence, the property owner enjoys interest (at least, notionally) on such deposit.
DEPOSIT, COMMENSURATE WITH RENT
Security deposit collected from the tenant, in respect of supply of ‘renting of immovable property’ service, will not be considered as payment for such supply. However, the exception is when the supplier applies such deposit as consideration for the said supply [Ref: proviso to Section 2(31) of CGST Act].
For example, assume a monthly rent of Rs.1.5 lakh. The property owner collects Rs.10 lakh as security deposit. At the time of tenant vacating the premises, the owner repays Rs.9 lakh of such deposit to the tenant and withholds Rs.1 lakh for any reason. In such situation, Rs.1 lakh is treated as consideration upon appropriation from the deposit.
DEPOSIT, NOT COMMENSURATE WITH RENT
In the aforesaid example, assume the security deposit collected from the tenant is Rs.5 crore (instead of Rs.10 lakh) against a monthly rent of Rs.1.5 lakh. Usually, property owners may collect security deposit, equivalent to six- or 12-months’ rent. Hence, it is possible that when the quantum of such deposit is high, the rent charged could be less and vice versa. That is, price is not the sole consideration for the supply.
It should be noted that the term "consideration", in relation to the supply of goods or services, includes the monetary value of any act or forbearance, in respect of / in response to / for the inducement of, the supply of goods or services or both, whether by the recipient or by any other person [Ref: Section 2(31)(b) of CGST Act]. Thus, the term “consideration” is defined quite widely. Moreover, consideration could flow either from the recipient (viz., monthly rent) or from any other person (viz., notional interest on deposit).
The Supreme Court, in April 2003[1], held that mere extension of interest free advance by a buyer to the manufacturer will not be enough to reload the assessable value with notional interest. It would be necessary for the Revenue to show that such advance has influenced in the lowering the price.
Hence, the Authority for Advance Rulings, Karnataka recently[2] ruled that notional interest on security (rent) deposit should be considered as part of value of supply (i.e., as part of the rental income) if the said notional interest influences the value of supply of ‘renting of immovable property’ service.
[1] Civil Appeal Nos. 2884-2892, 6600-6607 of 1999; 3635, 798, 410, 787-788/2000; 864 & 868 of2002
[2] Advance Ruling No. KAR/ADRG/48 of 2020
