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Showing 101 to 120 of 123 Records

• 2022 (6) TMI 275 - JHARKHAND HIGH COURT
  

  Application for rectification of summary of order - HELD THAT:- The writ petition has become infructuous in view of passing of the appellate orders annulling the demand notice under GST DRC-07. Therefore, the question of recovery pursuant to the garnishee notice under GST DRC-13 dated 14.2.2020 and 15.01.2021 does not arise.

  Taking note of the subsequent developments that have taken during pendency of this application. Petitioner has succeeded before the appellate authority and demand notice itself stands set aside. The garnishee notice also therefore does not survive. As such the writ petition has become infructuous - Petition dismissed.

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• 2022 (6) TMI 274 - MADRAS HIGH COURT
  

  Validity of SCN issued - whether show cause notice ought to have been issued in FORM GST DRC-01 electronically, as per Rules 100(2) and 142(1)(a) of the Central Goods and Services Tax (CGST) Rules, 2017? - HELD THAT:- It is to be noted that the petitioner is in default in filing GSTR-3 return for the month of February and March 2018, though for the corresponding period, the petitioner appears to have been filed GSTR-1&2 indicating the outward supply and purchases. The petitioner was issued with a notice, but the petitioner failed to respond. Thus, the impugned order has been passed. The petitioner has squandered the alternative appellate remedy by letting the limitation to expire. Now this Writ Petition has been filed to get over the limitation and pre-deposit.

  This Writ Petition is disposed off with liberty by giving liberty to the petitioner to file a statutory appeal before the Appellate Commissioner within a period of thirty days from the date of receipt of a copy of this order on making mandatory pre-deposit. The Appellate Commissioner shall entertain the appeal on merits without reference to the limitation and dispose the same in accordance with law.

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• 2022 (6) TMI 273 - MADRAS HIGH COURT
  

  Maintainability of appeal before Commissioner (appeals) - Period of limitation - Seeking restoration of cancellation of registration - appeal filed by the petitioner beyond the period prescribed under Section 107 of the respective GST Act, 2017 - HELD THAT:- On 31.01.2022, a batch of writ petitions in TVL. SUGUNA CUTPIECE CENTER VERSUS THE APPELLATE DEPUTY COMMISSIONER (ST) (GST) , THE ASSISTANT COMMISSIONER (CIRCLE) , SALEM BAZAAR [2022 (2) TMI 933 - MADRAS HIGH COURT], relating to the same issue were disposed by this Court subject to certain conditions under similar circumstances. The same relief is to be granted to the petitioner as the petitioner also has similar grievances in those writ petitions - it was held in the case that no fault can be attributed to the impugned orders passed by the Appellate Commissioner inasmuch as they cannot exercise jurisdiction beyond the provisions of the Act and are bound to Act in accordance of the provisions of the Act. At the same time, it is found that there are overwhelming reasons for granting reliefs to these petitioners to restore their registration.

  Following the earlier decision, relief granted the assessee.

  The petitioners are directed to file their returns for the period prior to the cancellation of registration, if such returns have not been already filed, together with tax defaulted which has not been paid prior to cancellation along with interest for such belated payment of tax and fine and fee fixed for belated filing of returns for the defaulted period under the provisions of the Act, within a period of forty five (45) days from the date of receipt of a copy of this order, if it has not been already paid.

  On payment of tax, penalty and uploading of returns, the registration shall stand revived forthwith.

  Writ petition disposed off.

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• 2022 (6) TMI 272 - APPELLATE AUTHORITY FOR ADVANCE RULING, MAHARASHTRA
  

  Classification of goods - Turmeric (Turmeric in Whole form - not in powder form) - Agricultural Produce or not - HSN Code - rate of GST - Levy of tax on services rendered by the Appellant as a Commission Agent in APMC, Sangli - applicability of SI. 54 Heading 9986 of Notification No. 12/2017 CT(R) dated 28.06.2017 read with SI. No. 24 of Notification No. 11/2017-C.T. (Rate) dated 28.06.2017 - requirement of registration under the CGST Act, 2017.

  HELD THAT:- On perusal of the definition of the term “agricultural produce”, it is observed that “agricultural produce” definition contains the expansion term “any” before the term “produce”, which clearly imparts a very wide connotation to the term “agricultural produce” under the GST law. The only constraint for any produce, to qualify for the “agricultural produce”, is that, either no further processing is done or such processing is done as is usually done by a cultivator or producer which does not alter its essential characteristics but makes it marketable for primary market - In the instant case, the impugned product is Turmeric (whole), which is supplied by the farmers in the APMC by availing the services of the Appellant, who acts as an authorised commission agent in the sale/purchase of the impugned commodity in the APMC, Sangli.

  It is seen that the turmeric is harvested from the farm land in the form of raw turmeric. It is to be noted that the fresh turmeric contains moisture, and is blackish in colour, which renders the fresh or raw turmeric perishable and unsustainable. Therefore, to make it more sustainable and marketable, the raw turmeric is subjected to post-harvesting operation, like, boiling, drying and polishing, which are carried out by the farmers themselves on their farm land. Thus, it is clear that the impugned product, i.e., dried turmeric (whole) is a produce out of cultivation of plant, which is subjected to certain post-harvesting processes.

  Whether these post-harvesting processes on the raw turmeric are usually carried out by the cultivator or producer? - HELD THAT:- On perusal of the affidavit and the declaration made by the said organisation to the effect that various processes, such as, boiling, drying and polishing of fresh harvested turmeric are carried out by farmers in their farms to make the turmeric marketable, it is established beyond any doubt that the post-harvesting processes are carried out by the farmers or producers themselves on their farm.

  Whether the said post-harvesting processes carried out by the farmers alter the essential characteristics of the turmeric or not? - HELD THAT:- On perusal of the Test Reports, it is observed that there is no difference between the essential characteristics of the raw turmeric and the dried turmeric as oil content and the curcuminoid content are invariably present in both the samples, though in different concentration. The said difference in the concentration of both the components in both the samples, i.e., raw turmeric and dried turmeric, is attributable to the drying of the fresh/raw turmeric having greater content of moisture, which eventually gets removed upon drying during post-harvesting operation to render higher concentration of the aforesaid components in the dried turmeric.

  Whether the said post-harvesting processes on the raw turmeric are carried out to make it marketable for primary market? - HELD THAT:- The Appellant have submitted that normally, the turmeric in the raw/fresh form is not sold by the farmers in the market, therefore, various post-harvesting processes are carried out by the farmers to make the turmeric sustainable in terms of its appearance and quality, suitable for bringing into a market.

  Whether the APMC markets where the impugned product is sold by the farmers to the traders by availing the services of commission agent will be treated as primary market or otherwise? - HELD THAT:- Since, the term primary market is not defined under GST law, the letter dated 01.02.2022, issued by APMC, Basmathnagar, Distt.-Hingoli (Maharashtra) is referred, wherein it has inter-alia been declared that “The APMC market across the state of Maharashtra act as primary or wholesale market for sale of agricultural produce by the farmers where the Traders/wholesalers make the purchase of such agricultural produce, by following laid down procedure. Thus, attributable to the said APMC letter, it can be aptly concluded that the APMC market, where the impugned product is sold by the farmers, is nothing but primary market.

  HSN code and rate of GST on the impugned product - HELD THAT:- On perusal of the relevant Chapter and Heading, it is observed that the impugned product, i.e., dried turmeric(whole) will get classified under the Heading 0910 30 20 bearing description as “Dried Turmeric (Curcuma)”, attracting the GST at the rate of 5%.

  Whether the services rendered by the Appellant as a Commission Agent in APMC, Sangli, are liable to GST in terms of SI. 54 Heading 9986 of Notification No. 12/2017 CT(R) dated 28.06.2017 read with SI. No. 24 of Notification No. 11/2017-C.T. (Rate) dated 28.06.2017? - HELD THAT:- On perusal of the entry at SI. No. 54 of the exemption notification, in the facts of the present case, it is observed that the services provided by the Appellant in the capacity of the commission agent for sale or purchase of impugned product, i.e., dried turmeric(whole), which has been held as an agricultural produce hereinabove, will not be subject to levy of GST.

  Whether the Appellant is required to be registered under the CGST Act, 2017 for his activities specified under Annexure-I? If yes, under which section of the GST Act, he is required to be registered? - HELD THAT:- The Appellant, who is undertaking the supplies of agricultural produce purely as a commission agent for the farmer, are not liable for compulsory registration under clause (vii) of section 24 of the CGST Act, 2017. However, as they are also undertaking supplies of the impugned product from their own account as a trader, they are required to take registration under section 22(1) of the CGST Act, 2017 subject to the condition that their aggregate turnover exceeds the threshold limit prescribed under section 22(1) ibid.

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• 2022 (6) TMI 254 - GUJARAT HIGH COURT
  

  Constitutional Validity of Section 103(1)(b) of the GST Acts - violative of Section 103(1)(b) of the GST Acts or not - Levy of GST on fryums/papad - HELD THAT:- Prima facie, it appears that the Appellate Authority took the view that the Papad are known in the market as "fryums" and not "Papad".

  There is a further challenge to the constitutional validity of Section 103(1)(b) of the GST Act on the ground that the same is manifestly arbitrary and violative of Articles 14 and 19(1)(g) respectively of the Constitution. The constitutional validity of Section 103(1) (b) of the Act is already made a subject matter of challenge in the case of J.K. PAPAD INDUSTRIES VERSUS UNION OF INDIA [2021 (11) TMI 155 - GUJARAT HIGH COURT]. In the said writ application, a Co-ordinate Bench of this Court has issued Notice and the matter is to come up on 08.06.2022 for hearing.

  Let Notice be issued to the respondents, returnable on 15.06.2022.

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• 2022 (6) TMI 253 - AUTHORITY FOR ADVANCE RULING, TELANGANA
  

  Exemption form GST - Medical insurance premium taken to provide health Insurance to the employees, pensioners and their family members - Vehicle insurance Policy taken to provide Insurance to the vehicles owned by the Board - Eligibility of exemption as mentioned in Entry No. 3 of the Notification Number 12/2017 - Central Tax (Rate), dt 28th June, 2017 - HELD THAT:- The applicant is procuring medical insurance services to their employees and their family members. Thus there is no direct relation between the insurance services procured by the applicant and the functions discharged by them under Article 243W read with schedule 12 to the Constitution of India. Therefore these services do not qualify for exemption under Notification No. 12/2017.

  Vehicle insurance policies procured by the applicant for the vehicles owned by the board qualify for exemption if they are directly used to provide services under Schedule XII of the Constitution. However if they are used for transportation of employees/board members/other persons they will not have direct relationship to functions discharged under Article 243W and therefore will not qualify for exemption under Notification No. 12/2017.

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• 2022 (6) TMI 252 - AUTHORITY FOR ADVANCE RULING, TELANGANA
  

  Applicable GST SAC and GST rate - Supply of service - Composite Supply or Mixed Supply - providing boarding and lodging to the students undergoing training under healthcare related vocational program - applicability of serial no. 14 of Notification No. 12/2017 dt:28.06.2017 - HELD THAT:- The applicant states that he is providing lodging and boarding to students undergoing training under healthcare related vocational program under Deendayal Upadyay Grameen Kaushalya Yojana (DDU-GKY) by charging Rs.9000/- per candidate per month; of which Rs.3500/- is towards rent for accommodation at fixed cost and Rs.5500/- towards food on head count/actual number of candidates - According to the applicant, the chapter heading ‘9963’ at serial no. 14 of Notification No. 12/2017 dt: 28.06.2017 describes such services for residential or lodging purposes and exempts the same if the value of supply of a unit of accommodation is below Rs.1000/- per day. The applicant states that he is charging only Rs.9000/- per month which amounts to Rs.300/- per day for both accommodation and food as a composite supply. Further that the supply of food is ancillary to accommodation and accommodation being the principle supply, hence he claims that their service is exempt from tax in view of this entry.

  As seen from the information serviced by the applicant, the rent is fixed at the rate of Rs.3500/- whereas the food is charged at Rs.5500/- as per the head count or actual number of candidates. This means that the price is variable to the extent of food supplied and this is not a single price the customer pays, no matter how much of the package is actually received. For the above reason, the two supplies are not integral to one another.

  There are two distinct supplies in this contract one for accommodation and the other for food - The SAC for supply of accommodation is ‘99631’ and as enumerated at serial no. 14 of Notification No. 12/2017 dt: 28.06.2017 this is exempt in the present case as per day rent is below Rs.1000/- - The SAC for supply of food is ‘99633’ and taxable at the rate is: i. 6% CGST & SGST each with ITC upto 14.11.2017. ii. 2.5% CGST & SGST each without ITC thereafter from 15.11.2017 onwards - There are two distinct supplies in this contract one for accommodation and the other for food - the service is not exempted vide Notification No. 12/2017 – CT(Rate) dated: 28.06.2017.

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• 2022 (6) TMI 251 - AUTHORITY FOR ADVANCE RULING, TELANGANA
  

  Levy of GST - Valuation - Resident Welfare Association (RWA) collecting monthly maintenance charges, certain annual fee by name sinking fund and charges for electricity used in common area - GST on monthly collection not exceeding Rs.7500 per member as total collection of the society is more than Rs.20 lakhs a year - GST on total monthly maintenance of Rs.7500 per member plus annual sinking fund collected in July or august month in which annual sinking fund will be collected due to monthly collection including annual sinking fund exceeding Rs.7500 per member for that month or only on sinking fund which is over and above Rs.7500 per member - GST on monthly collection of common area electricity charge paid by the members in addition to the Rs.7500 monthly maintenance charged on the basis of actual bill divided by carpet area of 9,01,913 sq. ft pro rata charged to respective member’s flat carpet area.

  HELD THAT:- The Serial No. 77 of Notification No. 12/2017 as amended vide Notification No. 02/2018 dt: 25.01.2018 states that service by an unincorporated body or a non-profit entity to its own members is exempt upto an amount of Rs. 7500 per member for sourcing goods or services from a 3rd person for the common use of its members in a housing society or a residential complex. Therefore where the aggregate turnover of a Residents Welfare Association (RWA) exceeds Rs.20 lakhs in a financial year and the amount collected for maintenance per member exceeds Rs.7500/- then the entire amount is chargeable to GST at the rate of 18% - Further even if the annual turnover of the RWA is greater than Rs.20 lakhs but the monthly maintenance charged per person is Rs. 7500/- or less, then such RWA need not pay tax on the amounts so collected.

  Any amounts collected periodically along with the monthly maintenance charges are covered under Entry 77 of Notification No. 12/2017. Therefore they are taxable if the total amount collected by the RWA, by whatever name i.e., monthly maintenance or sinking fund etc., exceeds Rs.7500/-. Therefore the total amount collected in July or august month by RWA from the members i.e., the monthly maintenance charge plus sinking fund amount is liable to tax if it exceeds Rs.7500/-. Nevertheless, GST is not leviable on electricity and water charges collected from residents.

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• 2022 (6) TMI 250 - AUTHORITY FOR ADVANCE RULING, TELANGANA
  

  Seeking clarification on determination of transaction value in case of supplies made free of cost by recipient by suppliers as per terms of contract - contracts with a host of vendors/suppliers for extraction of coal - HELD THAT:- The commodity ‘Diesel’ is covered under Entry 54 to the List II of the Schedule VII to the Constitution of India and therefore it is excluded from levy of GST and hence beyond the scope of Chapter XVII of the CGST Act, 2017.

  Application dismissed.

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• 2022 (6) TMI 249 - AUTHORITY FOR ADVANCE RULING, TELANGANA
  

  Maintainability of application when inquiry proceedings are pending - Government Entity as per Notification No.11/2017 & 31/2017 or not - works contract executing civil works for Central Government Employees Welfare Housing Organization (CGEWHO) - applicability of tax rate of 12% is applicable to the contract entered into by the applicant with CGEWHO, in pursuance of N/N.11/2017 –Central tax rate F.No.354/117/2017 – TRU dated 28th June, 2017 and amended N/N. 24/2017 – Central Tax (Rate) dated 21st September’ 2017 read with N/N. 31/2017 – Central Tax (Rate)) dated 13th October 2017 - HELD THAT:- It is well settled law of interpretation that where the legislature uses the same expression in the same statute at two or more places, then the same interpretation should be given to that expression. Thus, generally the same words are used with the same meaning throughout the same statute; otherwise it would cause injustice. This principle of interpretation was upheld by the Hon’ble Supreme Court of India in a catena of case law starting from AGHUBANS NARAIN SINGH VERSUS U.P. GOVT. THROUGH COLLECTOR OF BIJNOR [1966 (9) TMI 145 - SUPREME COURT] and the latest being SSHER SINGH VERSUS STATE OF HARYANA [2015 (1) TMI 1467 - SUPREME COURT]. Therefore in view of the amendment to Section 83(1) the expression ‘proceedings’ will have the same meaning for Chapter XIV as the other chapters mentioned in the CGST Act, 2017.

  In the present case as the DGGI, Hyderabad has even issued a notice for payment of tax before the above hearing was held for disposal of the question raised before AAR. Merely because the application before the AAR was filed earlier to the investigation initiated by DGGI they will not be immune from any inquiry.

  Thus as the proceedings are pending under Chapter-XIV of the CGST Act, 2017 regarding the question raised by the applicant, their application stands rejected.

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• 2022 (6) TMI 196 - CALCUTTA HIGH COURT
  

  Directing release of the petitioners’ vehicle - Levy of maximum penalty of 50% of the value of the goods or 200% tax payable, whichever is higher - petitioners submitted sufficient documents to raise a prima facie presumption of the petitioners being the owner of the goods - HELD THAT:- Since factual disputes, in respect of the authenticity of the ownership of the petitioners, and the legal question as to the applicability of the Central and the State Acts parallelly or one, in exclusion of the other, have been raised, such adjudication would be de hors the scope of the present appeal. Since it is within the domain of the first Court of learned single Judge, while deciding the writ petition, to adjudicate such questions on merits, even if the single Judge assumes jurisdiction in the teeth of availability of an alternative remedy by way of appeal, it is not intended to usurp such jurisdiction of the learned single Judge in the present appeal, which has been preferred against an interlocutory order.

  There are no error in the impugned order to justify interference in an intra-court appeal.

  Application dismissed.

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• 2022 (6) TMI 195 - KARNATAKA HIGH COURT
  

  Availability of alternative remedy of appeal - requirement of pre-deposit of 100% of penalty or 25% u/s 107 of CGST Act - Seeking release of goods vehicle - Physical verification/inspection of the conveyance, goods and documents issued in form GST MOV-2 - section 129[3] of the Central Goods and Services Tax Act, 2017 - HELD THAT:- The petitioner has offered surety and furnished the bank guarantee for 100% of the penalty. The petitioner’s remedy as against such order is under Section 107 of the CGST Act, and the petitioner can avail such remedy upon deposit of 25% of the penalty as contemplated under the proviso to Section 107 of the CGST Act.

  If the petitioner has obtained release of the vehicle against furnishing surety bond and bank guarantee [100% of the penalty] and there is an order as contemplated under section 129[3] of the CGST Act, the petitioner, if aggrieved, must avail permitted remedy under Section 107 of the CGST Act. If the requirement in law is that the petitioner must deposit only 25% of the penalty to avail such remedy, the petitioner cannot be fastened with the responsibility to pay 100% - the writ petition stands disposed of with liberty to the petitioner to avail remedy under Section 107 of the CGST Act upon deposit of 25% of the penalty.

  Petition disposed off.

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• 2022 (6) TMI 194 - AUTHORITY FOR ADVANCE RULING, GUJARAT
  

  Classification of services - rate of GST - composite supply of services - provision of services provided to Shahjahanpur Nagar Nigam (Local Authority) - services of electrical, lighting, earthing, fixation of junction boxes, poles and cantilevers, cabling infrastructure, design, supply, installation, testing and commissioning of various intelligent traffic management system - correct HSN / SAC code - HELD THAT:- The subject Contract Agreement, as enumerated in the brief facts, is a Works Contract Agreement, involving supply of goods and services for implementation of the Project. Vide Schedule II(6)(a) CGST Act, Supply of Works Contract shall be treated as a supply of service. We find that the service recipient is Shahjahanpur Nagar Nigam, Uttar Pradesh which is a local authority. Thus, the subject Supply is covered vide Sr no 3(vi)(a) of Notification 8/2017-Integrated Tax (R) dated 28-6-17 at Tariff 9954 and liable to 12% IGST rate. It is found that this Integrated Tax Notification comes into play in subject matter as the supply is Inter State Supply.

  M/s Amnex's submission to take into account Notification 24/2017- CT(R) dated 21-9-17, as this Notification pertains to Intra state supply, is dismissed.

  HSN/ SAC Code of Subject Supply - HELD THAT:- The subject ITMS project is an original works involving both installation, commissioning and maintenance. It is found that Tariff 9954, as mentioned in previous para, is reflected at the said sr. no 3(vi)(a) of Notification 8/2017-IT(R). On reference of SAC 995468: Other installation services n.e.c., it is found that the said SAC description encompasses the ITMS project, which is an original works installation and note that SAC 995468 occurs last in the numerical order of the of Tariff subheading 9954. In this backdrop and for the reason that the subject supply is made to a local authority and the rate being 12% IGST as per said sr no 3(vi)(a) to the said Notification and that Tariff 9954 is reflected at the said sr no 3(vi)(a), it is apt to consider SAC 995468 for the subject works contract, without delving further.

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• 2022 (6) TMI 193 - AUTHORITY FOR ADVANCE RULING, MAHARASHTRA
  

  Exemption from payment of GST - monthly license fee to be received by them on the proposed letting out on Leave and License Basis of their residential building to M/s. Life Insurance Corporation of India for residential purpose of their staff - monthly license fee to be received by them on the proposed letting out on Leave and License Basis of their residential building - SI. No. 12 of the Notification No.12/2017-CT(Rate), dated 28-6-2017 and corresponding S.No.12 of Notification No. 12/2017-ST(Rate) under Maharashtra Goods and Service Tax Act, 2017 - HELD THAT:- In the subject case, the supply of service pertains to the Real Estate Sector and can be called Real Estate Services (9972), where such services i.e rental/leasing services are involving own residential property (997211) where the owner i.e. the applicant, of the residential property is supplying Real Estate Service involving its own property - As per the schedule entry of Notification No.12/2017-CT (Rate) dated 28.06.2017 the residential dwelling/property must be given on rent for use as a residence. The entry does not mention as to whom the said services to be supplied. The exemption given in Sr. No. 12 mentioned above is qua the supply of service and not qua the recipient of the supply. We therefore agree with the contention of the applicant that, Serial No.12 of Notification No.12/2017-CT (Rate) and the corresponding Notification under MGST Act, 2017, is very clear wherein it gives exemption to the nature of the property and its usage and not by the status of recipient - It is a fact that the impugned residential properties will be used as residences by the staff of LIC and we therefore hold that, such services will be covered under the above mentioned Sr. No. 12 of Notification No.12/2017-CT (Rate) dated 28.06.2017 as amended. Further, if a residential property was either used or let out for commercial purposes then it would be classified as a service provided and attract GST. Only property let out for residential purposes will be exempt from the GST ambit. The GST applicability is not decided by the nature of the property but by the purpose for which it is used. To reiterate, it is not the nature of the property but the nature of the end use that will determine whether it is a commercial rent or residential rent.

  The ruling given by the West Bengal Authority for Advance Ruling, Goods and Services Tax, in the case of IN RE: M/S. BORBHETA ESTATE PVT. LTD. [2019 (6) TMI 1340 - AUTHORITY FOR ADVANCE RULING, WEST BENGAL] ie referred, where it was held that the Applicant's service of renting/leasing out the dwelling units for residential purpose was, exempt under Si No. 12 of the Exemption Notification No. 12/2017-CT (Rate) dated 28.06.2017, as amended from time to time and the Applicant, therefore, was not liable to pay tax on supply of such service.

  Thus the

  Applicant is eligible for the exemption from payment of GST on the monthly license fee to be received by them on the proposed letting out on Leave and License Basis of their residential building to M/s. Life Insurance Corporation of India for residential purpose of their staff, as per SI. No. 12 of the Notification No.12/2017-CT(Rate), dated 28-6-2017 and corresponding SI. No. 12 of Notification No.12/2017-ST(Rate) under Maharashtra Goods and Service Tax Act, 2017.

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• 2022 (6) TMI 192 - AUTHORITY FOR ADVANCE RULING, MAHARASHTRA
  

  Scope of supply - Exemption from GST - services provided by Executive Council of Insurers (ECOI) and ombudsman officers to the aggrieved persons who have grievances against insurance companies/insurers - payment received by the Life Insurance Council and General Insurance Council on behalf of Executive Council - amount received by Executive Council of insurers from the Life Insurance Council and General Insurance Council.

  Whether there is any supply rendered by the applicant in the subject case and if it is found that the applicant is undertaking a supply, then in such a case whether there is a supply of goods or services or both? - HELD THAT:- The definition of the term 'supply' is an inclusive definition and has to be understood as encompassing a wide range of activities and keeping the same in mind we find that in the instant case, the applicant entertains complaints made by any person or persons against an insurer and after listening to all the concerned parties, decides on such complaints filed by any person/persons who has a grievance against insurer. This is nothing but services rendered to the said person/persons and therefore can be considered as supply as defined under the GST provisions.

  In this case, it is observed, that applicant is rendering services to the aggrieved persons who have grievances against insurance companies/insurers. The said service is provided by way of by resolving the disputes of the said aggrieved persons with insurance companies. In fact, it is found that the Insurers, being the persons against whom there is a grievance, are also interested in solving the relevant issues and in this context, it is seen that by deciding on the complaints of the aggrieved persons, the insurance company being party to such disputes are also availing the services of the applicant/Ombudsman. Hence, the impugned activity undertaken by the applicant amounts to 'supply of services'.

  Whether there is consideration involved in the impugned transaction i.e. whether the applicant is receiving any consideration for the services rendered and from whom? - HELD THAT:- Even though the aggrieved persons do not pay any fees to the applicant, and the amounts are received from Life Insurance and General Insurance Council, it can be said that, in the subject case, the consideration for the impugned supply of services, instead of being paid by the aggrieved complainants are being paid by the said Councils/ insurance companies and satisfy sub-section (a) of the section 2 (31) of the CGST Act 2017 i.e the consideration in the instant case, is not done by the recipient of service (i.e. even if, only the complainants are considered as recipient of the service), rather the payment is made by 'any other person' i.e the Life Insurance and General Insurance Council. Therefore, funds received by applicant are covered under definition of 'consideration' paid for the supply of services as they come under the scope of 'by any other person' - thus, the impugned activities are supply of services, made for a consideration by the applicant.

  Whether the said supply in the course or furtherance of business? - HELD THAT:- The term business covers the mentioned or similar activities whether or not it is for a pecuniary benefit. In the subject case the activity undertaken by the applicant is covered under the definition of 'business', since the meaning of 'business' is very wide and enlarged due to the inclusive nature of the definition. Hence, the impugned activity undertaken by the applicant is a supply of services and the amounts received by the applicant from the Life Insurance and General Insurance Councils are not exempt from GST - Notification No. 12/2017-CTR dated 28.06.2017 exempts the intra-State supply of services of description as specified in column (3) of the Table mentioned therein from payment of GST. The services rendered by the applicant does not specifically find mention in the said notification. Hence, the activities of the applicant are not exempt under the said notification and consequently, the receipt of the amounts by the applicant from the Life insurance and General Insurance Councils are also not exempt from the levy of GST.

  Whether payment received by the Life Insurance Council and General Insurance Council on behalf of Executive Council are exempt from GST? - HELD THAT:- The payments are not received by the Life Insurance and General Insurance Council on behalf of the applicant, rather the amounts are paid to the applicant on behalf of the insurance companies. However, this question does not fall under the purview of Section 97 of the CGST Act, 2017 and is therefore not answered.

  Whether the amount received by Executive Council of Insurers from the Life Insurance Council and General Insurance Council are also exempt from GST? - HELD THAT:- It is already held that the concerned amounts paid by the Life Insurance Council and General Insurance Council to the applicant are taxable and not exempt.

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• 2022 (6) TMI 191 - AUTHORITY FOR ADVANCE RULING, MAHARASHTRA
  

  Scope of supply - charges received by the applicant towards upkeep and maintenance from its members - covered under Sec 7 of the CGST Act or not - taxability of receipt of a gratuitous payment from an outgoing member for the time he has resided in the society - no corresponding service being provided separately by the tax payer society - taxability of major repairs to be made in the future for the co-operative housing society, for which amounts are collected - whether the same is taxable at the time of its collection or whether the same would be taxable on utilization of such funds?

  Whether the charges received by the applicant towards upkeep and maintenance from its members are covered under Sec 7 of the CGST Act? - HELD THAT:- This question raised in the application was withdrawn by the applicant during the course of the Preliminary Hearing.

  Whether the receipt of a gratuitous payment from an outgoing member for the time he has resided in the society be taxable under the CGST Act, 2017 as there is no corresponding service being provided separately by the tax payer society? - whether the applicant society can legally collect the so called gratuitous and voluntary donation from a transferor of a flat in the society? - HELD THAT:- n the instant case, the contributions are received from the outgoing members who have been members of the society in the past and, have received services from the society as envisaged under the GST Act. Thus, it can be said that, Payment from an outgoing member to a society is a payment made for the services rendered by society to the outgoing member during his stay as a member in society. As outgoing member is satisfied with the quality of services received by him and provided by society during his stay as a member in society. Hence, it is a consideration received to the society against satisfaction of the said member on supply of services received from the society. This is akin to the service charges levied by restaurants on which GST is collected - the contributions are made by the outgoing members only because they have been a part of the said society. It is not that an outsider has given any contribution to the applicant society. The receipt of contribution by the applicant from its members whether outgoing or not, is only because of the fact that the members are or have been a part of the society. If the applicant society had received contributions from outsiders to the effect that the same was a donation then probably on case to case basis it could have been treated differently.

  The Applicant Society cannot take Voluntary Contributions at all from an outgoing member (transferor of a flat) in view of Bye laws No. 7 (e) and 38 (e) (ix) of the Model Bye laws for Cooperative Housing Societies in Maharashtra. It appears that the applicant is trying to give a colour of 'voluntary and gratuitous' payment for amount received from a Transferor/Outgoing member which is collected and will be used for carrying out Major Repairs in future as is seen from the Affidavit submitted by Shri Chandresh Thakker, Treasurer of the Applicant Society - Activities rendered by the applicant Society to its members are supply of services in view of the amended Section 7 of the CGST Act, 2017 and contributions/charges collected by the Applicant Society from its members are chargeable to tax under the GST Laws.

  Thus, it appears that each and every outgoing member makes a gratuitous payment to the applicant in gratitude thus leading to a conclusion that all sellers/Transferor of flat in the society, without a single exception are in gratitude towards the Applicant Society. Thus, it appears that the applicant society has laid down norms albeit orally it seems, that there is a compulsion for an outgoing member to show gratitude to the Applicant Society by way of making gratuitous/voluntary payments to the Society - the amounts are collected for smooth transfer of the flat from the Transferor to the Transferee.

  Thus, 'consideration' includes -any payment made (in the subject case payment is made by the Transferor which is termed as voluntary contribution by the applicant) in money and since the payment is made towards Major Repair Funds of the Society, it is clear that the said payment is for the inducement of, the supply of goods or services or both, either by the recipient if he continues to be a member, or by any other person (meaning, other members) - Thus though the collection of charges of society might be illegal under some other law, but since it is covered by the scope of supply and other ingredients of GST levy, it is taxable.

  There are no hesitation in holding that the receipt of gratuitous payment from an outgoing member is taxable under the CGST Act, 2017.

  Whether major repairs to be made in the future for the co-operative housing society, for which amounts are collected, be taxable at all as it is for the members only? And if taxable, whether the same is taxable at the time of its collection or whether the same would be taxable on utilization of such funds? - HELD THAT:- This question raised in the application was withdrawn by the applicant during the course of the Final Hearing and therefore, both the questions are not taken up for discussion.

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• 2022 (6) TMI 135 - ALLAHABAD HIGH COURT
  

  Seeking return/refund the amount of Rs. 25,00,000/- along with interest, which was illegally collected from the petitioner - HELD THAT:- The amount voluntarily deposited by the petitioner under Section 73(5) of CGST Act, 2017, is reflected from the receipt itself. Therefore, there are no good reason to direct for refund of the amount at this stage.

  Learned counsel for the respondent nos. 2 and 3 states on instructions that notice under relevant provisions of CGST Act, 2017, is likely to be issued to the petitioner shortly for adjudication of the case on merit - petition dismissed.

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• 2022 (6) TMI 134 - ALLAHABAD HIGH COURT
  

  Maintainability of petition - availability of alternative remedy of appeal - Section 107 of the CGST/ SGST Act, 2017 - Evasion of turnover and tax - HELD THAT:- Perusal of the impugned order shows that the Proper Officer has issued detailed show cause notice based on documentary evidences indicating evasion of turnover and tax. In the impugned order, the Proper Officer under the CGST/ SGST Act, 2017 has recorded a finding that "pursuant to the notice, assessee appeared and mainly pressed point Nos.5, 7, 9 and 10 of the show cause notice."

  Thus, as per the impugned order, it appears that the petitioner has pressed his reply before the Proper Officer only on point Nos.5, 7, 9 and 10 of the show cause notice and his submissions have been noted by the Proper Officer in the impugned order and, thereafter giving reasons, contention of the petitioner has been rejected.

  Since the petitioner has an alternative remedy of appeal in which questions of fact and law may be raised and, therefore, the writ petition deserves to be dismissed on the ground of alternative remedy of appeal under Section 107 of the CGST/ SGST Act, 2017. It is made clear that in the event the petitioner files an appeal before the appellate authority complying with the statutory provisions, then the appeal shall be heard by the appellate authority without being influenced by any of the observations made in the body of this order.

  Petition dismissed.

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• 2022 (6) TMI 133 - AUTHORITY FOR ADVANCE RULING, GUJARAT
  

  Quantification of GST - calculation of tax on new car purchase by the company is sold after using it for business purpose - rate of GST - Whether the value of old and used car, sold by the company as mentioned above, can be taken as the value that represent margin of the supplier, on supply of such car, and whether the GST can be charged on such margin? - Whether the value that represent margin of the supplier, on supply of such old and used goods/Car will be inclusive of GST or exclusive?

  HELD THAT:- The subject car has engine capacity exceeding 1500 cc, length > 4000 mm, and ground clearance > 170 mm, with diesel as its fuel. As the applicant submits that it has not availed ITC, this used car to fall under the category of sr no 3 to Notification 8/2018-CT (R) dated 25-1-18.

  The Value for intended supply shall be the difference between the consideration received for supply of said car and the depreciated value of the said car on the date of supply. Depreciation is as per Section 32 Income Tax Act - GST rate leviable is 18% - Valuation, as per Explanation (i) to said Notification 8/2018-CT(R), is exclusive of GST.

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• 2022 (6) TMI 94 - ALLAHABAD HIGH COURT
  

  Levy of penalty - Seizure of goods alongwith vehicle - case of petitioner is that the requirement of e-way bill to accompany the goods was not in place in the State of U.P., at the relevant time - HELD THAT:- It is a settled principle in law that no party may be prejudiced by an act of Court. While, the Supreme Court set aside all the orders passed by this Court in different cases as were disclosed by the State in its compliance affidavit, it can never be accepted that it was the intention of the Supreme Court to render the assessees remediless or to take away their right of appeal. In fact the order of the Supreme Court clearly indicates to the contrary. Thus, it was provided by the Supreme Court that in compliance of its order, the revenue authority shall necessarily make compliance within a period of four weeks.

  It remained for the State authorities to have correctly apprised the Supreme Court, at that stage, itself that the remedy of appeal had been lost by most of the assessees.

  This Court cannot turn a blind eye to the harsh facts and their consequence, as have been noted above. Accordingly, a query was put to the learned Chief Standing Counsel, today, if the State would waive its objection as to limitation, in these circumstances. Sri K.R. Singh, learned Chief Standing Counsel has fairly stated, since the circumstances are unique and not such as may be blamed on the assessees, the State would not raise any objection to limitation if the appeal/s is/are filed by aggrieved assessees, within reasonable time.

  The matter is remitted to the appellate authority to decide the appeal afresh, on merits without raising any objection as to limitation - Petition allowed by way of remand.

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