No space for co-working spaces in the GST regime
Post the eruption of COVID-19, the world shifted to digitalization, and work from home became a norm. Various companies started adopting a hybrid (digital/physical) working arena approach where employees chose to work from the office or home. Largely, companies shifted from traditional rental office spaces to shared/ co-working spaces to reduce admin and rental costs. Such spaces also allowed access to flexible office space where a physical layout could be altered to accommodate fewer people, and the community shifted to digital realms.
Despite these benefits, a roadblock was the denial of GST registration when the ‘Principal Place of Business’ was applied for such shared/co-working spaces. The tax authority’s cautious approach was owing to the increased revenue leakages where the GST registrations were fraudulently obtained and misused for fake invoicing, thereby transferring “paper input tax credit.”
While the taxpayers are adopting modern business practices, the Department has also rightly contested that there is no stability in registrations obtained at such co-working places considering the limited/no documentation/records available at the place of business and also the permanency of such addresses. Thus, as a standard practice, the officers started calling for extensive documentation such as the original registered lease agreement, notarized lease agreement between the co-working space companies, NOC from the original owner in the name of the companies, and KYC of the original owner, etc. Although these documents look preliminary, they are very difficult to obtain considering the complicated structure of the co-working space arrangement discussed below.
For a better understanding, let’s examine the structure of co-working spaces. Generally, an original owner leases his property to a co-working space developer who further provides space and other services to multiple companies. Obtaining spaces differ from getting a single desk/cabin to getting the entire floor. Furthermore, it is worth noting that a co-working space not only rents out space but also certain allied services such as internet connection, phone and fax numbers, house-keeping services, kitchen amenities/drinking water, electricity usage, parking area, access to conference rooms, printing credits, etc. As this is more of a bundled service than only space rental, the co-working spaces enter into a ‘Membership/ Service Agreement’ with the companies, not a lease rent agreement.
As against the service agreement, the authorities are adamant about approving the registrations only if registered leave and license agreements are uploaded, which are derived from applicable state laws (E.g., Maharashtra Rent Control Act). The agreement between a co-working space and an applicant is a ‘Service Agreement’ for sharing premises and is not a ‘lease’ /‘leave and license’ agreement which does not require registration under the State Rent Control Act. Furthermore, GST law nowhere mandates a registered leave and license/lease agreement for obtaining registration. In fact, the GST portal and CBIC FAQs recognize shared/co-working spaces and GST registrations are allowed basis of NOC from the original owner and a copy of the electricity bill.
A general condition in the service agreement restricts the applicant from creating tenancy interest, leasehold estate or real property interest. On one hand, the taxpayer is getting rejections vis-à-vis registration applications and thus litigating with the tax authorities, while on the other hand, persuading the original owners and co-working space providers for documentation. This has led to severe hardships for the taxpayer resulting in a delay in obtaining registrations owing to the piling of requirements/multiple rejections.
It is worth noting that even though Kerala Authority for Advance Ruling had affirmed that GST registration can be allowed to multiple firms operating from the same address, the Tamil Nadu Authority for Advance Ruling had rejected the same. This highlights the different mechanisms adopted by different states, adding to the agony of the taxpayers burdening them with impractical requirements.
There is no doubt that there has been a tremendous increase in bogus invoicing and detection of fraud, and it needs to be controlled and prevented, but the current practice is making genuine taxpayers willing to do business in India suffer. There might come a point where foreign companies stop investing in India, considering the stringent registration provisions in a hybrid workflow model like today. The need of the hour is a prudent clarification by the GST Council to clear the air on the GST registration issues and devise a mechanism to check credit frauds without impacting genuine taxpayers for as fundamental a thing as to get registered for paying GST.