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GST - Case Laws
Showing 41 to 60 of 128 Records
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2019 (2) TMI 1155 - KERALA HIGH COURT
Vires of Section 174 of the KSGST Act - time limitation - Section 25(1) of the KVAT Act - Held that:- The issue decided in the case of M/S. SHEEN GOLDEN JEWELS (INDIA) PVT. LTD. VERSUS THE STATE TAX OFFICER (IB) -1, AND OTHERS [2019 (2) TMI 300 - KERALA HIGH COURT], where it was held that the petitioner's plea is rejected that the State lacks the vires to graft Section 174 into KSGST Act, 2017 - petition dismissed - decided against petitioner.
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2019 (2) TMI 1154 - KERALA HIGH COURT
Unable to upload FORM GST TRAN-1 - input tax credit - migration to GST Regime - Held that:- The Ext.P3 is the circular issued by the Government of India for “setting up an IT Grievance Redressal Mechanism to address the grievances of taxpayers due to technical glitches on GST Portal - the petitioner may apply to the 2nd respondent, the Nodal Officer. The petitioner applying, the Nodal Officer will look into the issue and facilitate the petitioner’s uploading FORM GST TRAN-1, without reference to the time-frame - petition disposed off.
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2019 (2) TMI 1153 - KERALA HIGH COURT
Vires of Section 174 of the KSGST Act - time limitation - Section 25(1) of the KVAT Act - Held that:- The issue decided in the case of M/S. SHEEN GOLDEN JEWELS (INDIA) PVT. LTD. VERSUS THE STATE TAX OFFICER (IB) -1, AND OTHERS [2019 (2) TMI 300 - KERALA HIGH COURT], where it was held that the petitioner's plea is rejected that the State lacks the vires to graft Section 174 into KSGST Act, 2017 - petition dismissed - decided against petitioner.
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2019 (2) TMI 1152 - KERALA HIGH COURT
Unable to upload FORM GST TRAN-1 - input tax credit - migration to GST Regime - Held that:- The Ext.P3 is the circular issued by the Government of India for “setting up an IT Grievance Redressal Mechanism to address the grievances of taxpayers due to technical glitches on GST Portal - the petitioner may apply to the 2nd respondent, the Nodal Officer. The petitioner applying, the Nodal Officer will look into the issue and facilitate the petitioner’s uploading FORM GST TRAN-1, without reference to the time-frame - petition disposed off.
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2019 (2) TMI 1151 - GUJARAT HIGH COURT
Supply of goods and /or services - supply of goods or services or both to or by a Special Economic Zone developer or a Special Economic Zone unit - inter-State trade or commerce - section 7(5) of the Integrated Goods and Services Tax Act, 2017 - validity of levying tax on sales of petroleum crude, motor spirit (commonly known as petrol), high speed diesel, natural gas and aviation turbine fuel to Special Economic Zone units and developers under the Gujarat Value Added Tax Act, 2003 by treating them to be local/intra- State sales within the State of Gujarat.
Held that:- Issue Rule returnable on 8th February, 2019.
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2019 (2) TMI 1150 - BOMBAY HIGH COURT
Bail application - grant of pre-arrest/anticipatory bail - wrongful availment of input tax credit - offence under Section 132(1)(b) and (c) of CGST Act - Held that:- It is astonishing to note that, the concerned Advocate on record “Mr.Ritesh Ratnam” has deliberately and with malfide intention not stated in the said letter that there is no interim relief granted in favour of the applicant. The Order dated 24.11.2018 clearly indicates that, the said Advocate Mr. Ritesh Ratnama himself appeared on 24.11.2018 before this Court and in his presence the said Order was passed including the sentence “no interim relief” - It appears that, due to the said deliberate miscommunication by the applicant dated 26.11.2018, the Investigating Agency refrained itself from either arresting or interrogating the applicant. The deplorable practice adopted by the applicant and his Advocate is deprecated.
This Court is of the considered view that the applicant does not deserve to be protected by prearrest bail - application dismissed.
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2019 (2) TMI 1083 - GUJARAT HIGH COURT
Jurisdiction of SCN issued under section 73 of the Finance Act, 1994 - provisions relating to service tax contained in the Finance Act, 1994 repealed by section 173 of the Central Goods and Service Tax Act, 2017 - Held that:- Issue Notice returnable on 20th February, 2019.
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2019 (2) TMI 1082 - AUTHORITY FOR ADVANCE RULING, HARYANA
Input tax credit - when the credit will be available - time of supply vis-å-vis raising the tax invoice to actual supply of goods.
Input tax credit - sale invoices which are raised in the end of month by the seller; but the material arrives at the end of the purchaser in the next month - applicant submitted that in the view of the given facts, co-read with the provisions discussed above, the applicant will be entitled the claim the Input Tax Credit in the same month in which the invoice is raised & tax is deemed to be paid by the supplier who has delivered the goods to the transporter for transporting the same to the recipient's destination - Held that:- In case of invoices being raised by supplier in previous month and goods being received in the succeeding month, input tax credit on goods so received shall be available to the applicant, only when applicant has received the goods.
Input tax credit - applicant, in the month end; to meet the monthly sale targets (high volume) raises the invoice/s to the end customer/s, deposit the due tax on the raised invoices BUT before receiving the physical delivery of goods from its supplier since the goods are in transit (as discussed above) and makes the delivery of goods only after receiving the same in the next month - applicant submitted that the applicant will be under liability to pay the tax in the same month in which the invoice is raised and tax is collected by him even though he is not in physical possession of goods to be delivered under invoice & delivery/supply of goods is to take place at later stage to end customer - Held that:- The liability to pay tax shall arise on the basis of time of supply, which in case of supply of goods is earlier of the following dates: (a) the date of issue of invoice by the supplier or the last date on which he is required, under sub-section (1) of section 31, to issue the invoice with respect to the supply; or (b) the date on which the supplier receives the payment with respect to the supply.
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2019 (2) TMI 1081 - AUTHORITY FOR ADVANCE RULING, HARYANA
Input tax credit - GST charged by the Contractor for hiring of buses for transportation of employees - GST charged by the Contractor for hiring of cars for transportation of employees - restriction on ‘Rent a Cab’ service specified in Section 17(5)(b)(iii) - Held that:- The phrase “rent-a-cab” has not been defined in the CGST/HGST Act, 2017. In situations where statutory meaning of any term/phrase has not been provided words, entries and items in taxing statutes must be construed in terms of their commercial or trade understanding, or according to their popular meaning. Resort to rigid interpretation in terms of scientific and technical meanings should be avoided in such circumstances.
Where any commercial vehicle is hired for transportation of passengers, it would be squarely covered by the phrase “rent-a-cab” In other words, any person who provides motor vehicle designed to carry ‘passengers’, on rent, would be included. This also implies that it includes renting of motor cars, motor cabs, maxi cabs, mini buses, buses and all other motor vehicles which are designed to carry passengers, irrespective of their capacity to carry passengers. The contentions of the applicant that hiring of buses which can carry large number of passengers would not qualify under “rent-a-cab” is found to be untenable and the activitiy of the contractor in the instant case, providing buses or cars on hire to the applicant, is specifically covered under the meaning of “rent-a-cab”, which makes the impugned supply as ineligible for ITC in terms of Section 17(5) of the CGST/HGST Act, 2017.
It clearly stands established that the services of the Contractor for hiring of buses/cars for transportation of employees qualify as “rent-a-cab” services. Further, it is also observed that nothing has been brought on record to suggest that the impugned service is not a service which is obligatory for an employer to provide to its employees under any law for the time being in force; or that such inward supply of services is being is used by the applicant for making an outward taxable supply of the same category of services or as part of a taxable composite or mixed supply.
The applicant is not eligible for input tax credit of GST charged by the Contractor for hiring of buses/cars for transportation of employees.
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2019 (2) TMI 1080 - AUTHORITY FOR ADVANCE RULING, HARYANA
Levy of CGST/SGST Act - merger of entities - merger of his proprietorship firm as a going concern with a private limited company on the fixed assets and currents assets including stocks of raw material, semi-finished and finished goods - transfer of input tax credit available in the credit ledger account or cash ledger account of proprietorship firm to the respective credit ledger and cash ledger account of the private limited company, consequent upon merger - Section 18 (3) of the CGST/HGST Act, 2017.
Held that:- It is evidently clear that there are provisions in the law, where in case of merger, a registered person, by filing Form GST ITC-02, electronically on common portal, can transfer un-utilized input tax credit lying in his electronic credit ledger to the transferee. Here it is to be noted that these provisions pertain to transfer of unutilized input tax credit. These provisions are not applicable to un-utilized balance lying in electronic cash ledger - It is further observed that Section 7 of the CGST/HGST Act, 2017, defines the scope of supply, which includes sale, transfer, barter, exchange made for a consideration in the course of or for furtherance of business and also provides vide clause (d) to sub-section (1) that the activities to be treated as supply of goods or services as referred to in Schedule ll.
As per Para 4(c) of Schedule II to the CGST/HGST Act, 2017, transfer of business as a going concern is not treated as supply and thus, the same stands excluded from the scope of supply of goods - it emerges that the applicant can transfer un-utilized input tax credit, under the provisions of Section 18(3) of the CGST/HGST Act, 2017 and Rule 41 of the CGST/HGST Rules, 2017, in case of merger.
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2019 (2) TMI 1009 - AUTHORITY FOR ADVANCE RULING, WEST BENGAL
Input tax credit - inward supplies for construction of the warehouse - section 17(5) (c) & (d) of the GST Act - immovable property or not? - property of the warehouse being built - Held that:- The Vendor is not supplying the floor as a pre-fabricated removable structure. The civil work undertaken is meant not only for fixing the prefabricated structure built upon the floor but also for developing the floor space itself - Beneficial enjoyment of the floor so inalienably attached to the land is integral to the enjoyment of the warehouse.
The Applicant is constructing a warehouse that is intended to be used as a permanent structure, and associated with beneficial enjoyment of the land on which it is being built. The technology used for the construction of the warehouse involves the application of pre-fabricated structures and also civil work for supporting the pre-fabricated structure and developing the floor of the warehouse. The warehouse cannot be conceived without beneficial enjoyment of the civil structure embedded on earth. The warehouse being constructed is, therefore, an immovable property, and the input tax credit is not admissible on the inward supplies for its construction, as the credit of such tax is blocked under section 17(5) (d) of the GST Act.
The warehouse being constructed is immovable property. The input tax credit is, therefore, not admissible on the inward supplies for construction of the said warehouse, as the credit of such tax is blocked under section 17(5)(d) of the GST Act.
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2019 (2) TMI 1008 - AUTHORITY FOR ADVANCE RULINGS, CHHATTISGARH
Rate of tax - Classification of supply - supply of goods or services - books which the Chhattisgarh Text Book Corporation is supplying as per instruction of School Education Department CG [Loksikshan Sanchnalay] after printing the Syllabus decided by the SCERT - zero rated goods or not - books which the Chhattisgarh Text Book Corporation, is supplying as per instruction of School Education Department [Loksikshan Sanchnalay] after printing the Syllabus decided by the SCERT - books which the Chhattisgarh Text Book Corporation is supplying as per instruction of various agencies of School Education Department CG such as Rajiv Gandhi Siksha Mission/SCERT/office of District education officer etc. - books which the Chhattisgarh Text Book Corporation is supplying as per instruction of various agencies of School Education Department CG such as Rajiv Gandhi Siksha Mission/SCERT/office of District education officer etc.
Held that:- The State Government has constituted the Chhattisgarh Text Book Corporation for the above mentioned task in a continuous manner according to which Chhattisgarh Text Book Corporation supplies the books owned and printed by it to School Education Department and Rajiv Gandhi Shiksha Mission every year whose syllabus is being approved by the experts.
Chhattisgarh Text Book Corporation performs the works of publishing and distribution of books, consequent to getting it printed, as per Order No. F-10-12/2014/20, dated 13-4-2005 of School Education Department. The Chhattisgarh Text Book Corporation has been registered on 11-8-2004 as per Chhattisgarh Society Registration Act, 1973. It is the permanent job of Chhattisgarh Text Book Corporation to prepare specified educational books every year as per the syllabus as approved by the experts, get the books printed class-wise and to transport the same to specified schools. Separate amount is being determined for every work according to which the sale price of specified educational books is fixed. In the instant case in hand, ownership of printed books is never transferred to the School Education Department and Rajiv Gandhi Shiksha Mission etc. i.e. here the ownership of printed books at all times, lies with the Chhattisgarh Text Book Corporation and more-over the sale price is being computed with reference to 'sale of books' in applicant's books of accounts.
Supply of books, printed with logo, design, name, address or other contents supplied by the recipient of such printed goods, are composite supplies and the question, whether such supplies constitute supply of goods or services would be determined on the basis of what constitutes the principal supply. It is to be noted that in case of composite supplies, taxability is determined by the principal supply - In the instant case the applicant, Chhattisgarh Text Book Corporation has submitted that it provides such paper to job workers (printers) for getting the content printed as provided by SCERT along with the patterns/ layout of the books which it specifically decides.
In this case supply of goods is involved i.e. 'supply of specified printed educational books', which is the principal supply and accordingly we come to the considered conclusion that the said supply merits being treated as "printed books" as specified under Serial No. 119 ("Printed books, including Braille books") of Notification No. 2/2017-State Tax (Rate) No. F-10-43/2017CT/V /70, dated 28-6-2017.
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2019 (2) TMI 1007 - AUTHORITY FOR ADVANCE RULINGS WEST BENGAL
Admissibility of Advance Ruling application - Section 97(2)(a) of the CGST/WBGST Acts, 2017 - Applicant submits that the question raised in the Application has neither been decided by nor is pending before any authority under any provisions of the GST Act - Held that:- 1st proviso to Section 98(2) prohibits this Authority from admitting any application where the question raised is already pending or decided in any proceedings in the case of the applicant under any provisions of the GST Act. It does not distinguish between stages or nature of the proceedings. Any action lawfully taken under any provisions of the GST Act is, therefore, to be construed as proceedings under the Act.
It appears from records that the Application was filed online on 22-11-2018, whereas, as the above central authority submits, the proceedings under Section 71 had been initiated on 31-7-2018. The Applicant did not dispute that officials from the concerned authority had visited his places in connection with the investigation, and its subject matter was the same question on which he was seeking a ruling from this Authority.
It is amply clear from the above discussion that proceedings under the GST Act were pending against the Applicant on the date of hearing under Section 98(2), concerning the same question on which he was seeking advance ruling - application cannot be admitted.
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2019 (2) TMI 1006 - AUTHORITY FOR ADVANCE RULING, DAMAN, DIU AND DADAR AND NAGAR HAVELI
Classification of goods - Broom Stick made of plastics - Sprayers made of Plastics - applicable rate of tax - Held that:- Broom stick is a cleaning tool consisting of usually stiff fibres (made of materials such as plastic) attached to, and roughly parallel to, a cylindrical handle, The broomstick is thus a variety of brush with a long handle. It is commonly used in combination with a dustpan for cleaning floors etc. - it is very much clear from the reading of the main heading that the major heading for the classification of the plastics broom-stick is 9603.
Since the product in question i.e. Broom-Sticks is made from plastics, hence, it is very much clear that it should be classified as Brooms other than brooms consisting of twigs or other vegetable materials bound together , with or without handle. Thus brooms made from plastics are other than brooms classifiable under heading 96031000 - the correct classification of the Plastic Broom-Stick is under heading 96032900 and classifiable as “Others” - the product Plastics Broom-Stick is eligible for concessional rate of tax vide Notification No. 1/2017-CT(rate) dtd 28.06.2017 i.e. 5% IGST or 2.5% CGST + 2.5 UTGST.
Classification of the product - Sprayers - Held that:- Sprayer is a device used to spray a liquid. The sprayers are commonly used for projection of water, weed killers, crop performance materials, pest maintenance chemicals, as well as manufacturing and production line ingredients. In agriculture, a sprayer is a piece of equipment that is used to apply herbicides, pesticides, and fertilizers on agricultural crops. Hence, we are of the view that Sprayers are different from irrigation systems - the product of the applicant is a “Portable Sprayers”. We find that the product “Portable Sprayers” under the HSN Code 84244100 is available. Hence, Sprayers are correctly classifiable under the HSN Code 84244100. The correct rate of GST for the product in question is (9% CGST+9% UTGST) 18%.
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2019 (2) TMI 1005 - APPELLATE AUTHORITY FOR ADVANCE RULING, HARYANA
Place of supply - sourcing (on a worldwide basis)) of goods from India - export or not - Challenge to Advance ruling decision - Non-speaking order - It is pleaded that the Ld. AAR has not applied mind while passing the impugned order and the order is non-speaking.
Held that:- It is observed that the appellant is side tracking the facts by submitting that the appellant is not an agent or broker, as no such question was asked before the AAR - The Id. AAR has answered all the Questions raised, in term of relevant provisions of the GST Act and by giving detailed reasons. The plea of the appellant, that the AAR has given SAC & description alongwith tax rate which was not asked for, does not hold water because AAR has clarified each and every aspect raised in the application for Advance Ruling by giving self-explanatory findings. Thus the arguments raised by the appellant are untenable.
The appellant has himself admitted that he has been providing services to the Esprit Germany in terms of the contract between Esprit Germany and Esprit Hong Kong and for that purpose an agreement was made between Esprit Hong Kong and Esprit India (appellant). The appellant is providing the services of market research and assisting in trade mark protection, identification of supplies and inspection and quality control of the goods/services. Therefore, we find that the AAR has rightly identified the SAC description with rate of tax - After perusing the provisions of Section 97(2) and going through the findings of AAR, we are of the view that Question 2 and 3, raised by the applicant, have rightly been declined by the AAR.
There is no hesitation in dismissing the appeal - the Advance ruling decision does not suffer from any infirmity or illegality and the same is upheld.
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2019 (2) TMI 1004 - APPELLATE AUTHORITY FOR ADVANCE RULING, HARYANA
Levy of GST - actionable claims or not - amount of issuance fee retained/forfeited by LSRPL - reward point based loyalty programme - challenge to Advance ruling decision - Held that:- It is very clear that the loyalty programme is a programme devised with the aim of generating and maintaining customer loyalty towards the partners entering into agreement with the appellants for the running and managing the overall scheme - It is not the appellant’s case that consideration for maintaining and facilitating encashment of payback points is flowing from the end customers. In fact it is admitted position that the amount received upfront from the Partners in respect of the generated payback points is booked as revenue in their account.
The consideration for total payback points including those becoming unredeemed ones after validity period, has flowed from the Partners - this consideration has two components - fixed and variable. The fixed component is what has been received by the appellants by the name of Management Fee and the variable component is the amount booked as revenue in respect of the unredeemed leftover payback points.
Appellant’s contention that AAR has admitted that payback points are in the nature of actionable claim and therefore any consideration is out of the provision of GST is grossly misplaced. In fact Appellant is in possession of points and revenue at their end. Whenever customers claim/ redeem the points it is their liability to honour the claim of Customers. However when there can be no claims by the end-customers after the expiry of validity period, these are no more actionable claims. These stand lapsed at the end of the Customers and Appellant treat the redeemed money as revenue which can never be described as any claim against anyone.
The consideration for the unredeemed payback points has already flowed from the Partners. After validity period the same has become appellant’s revenue by virtue of the contract for servicing of the loyalty scheme including the points ibid, executed between the Partners and the appellants. Even if it is admitted that there is a provisioning of service by the appellant to the end-customers, there cannot be any such service or actionable claim against the payback points not redeemed by them against anyone.
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2019 (2) TMI 1003 - AUTHORITY FOR ADVANCE RULING, HARYANA
Classification of supply - applicant is supplying WTE PLANT BOILER'S FLUE GAS CLEANING SYSTEM (to the customer's address at Andhra Pradesh) - whether classified under HSN Code 84051090? - rate of GST - Held that:- The impugned product is classifiable under heading 8421 of the first schedule to the Customs Tariff Act, 1975, being filtering or purifying machinery and apparatus for gases.
Rate of GST - Held that:- From the working of impugned device, it can be inferred that this device can also be used as pollution control equipment in other power plants as well, which may be based on other fuel, such as fossil fuel, etc. Thus, this impugned item cannot be called as part of “waste to energy plants/devices” in generalized manner, as it would depend upon in its actual use - it emerges that the impugned item supplied by the applicant is pollution control device classifiable under chapter heading 8421 of the first schedule to the Customs Tariff Act, 1975 and when the same is supplied for being used in “waste to energy plants/devices” the same would be covered by Sr. No. 234 of schedule I of Notification No.01/2017-Central Tax (Rate) dt.28.06.2017 & Notification No.35/ST-2 dt.30.06.2017, chargeable to CGST @ 2.5% and SGST @ 2.5%.
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2019 (2) TMI 1002 - AUTHORITY FOR ADVANCE RULING, HARYANA
Levy of GST - Classification of supply - construction and guaranteed lease - Private Entrepreneurs Godowns built under the PEG-2008 scheme of the FCI and leased out to the Nodal Agency (UPSWC) on ‘Lease and services basis’ for the storage of FCl’s food grain stocks (Wheat) - Mixed Supply - Held that:- Under the scheme for construction of godowns for FCl-storage requirement through private entrepreneurs2008 (known as PEG-2008 scheme), the Haryana State Co-operative Supply and Marketing Federation Ltd. (Hafed) was notified as Nodal Agency for construction of godowns in the State of Haryana - The Haryana State Cooperative Supply and Marketing Federation Ltd. (HAFED) was notified as nodal agency for construction of godowns in the State of Haryana under the said PEG-2008 Scheme of the Central Government/ FCI.
In case of Lease only basis, godowns have been built by the Private Investor and have been leased out to the Nodal Agency which manages storage, preservation and warehousing of the stocks of the FCI stored therein - In case of Lease and Services basis, godowns have been built by the Private Investor and have been leased out to the Nodal Agency and the storage, preservation and warehousing of the stocks of the FCI stored therein is managed by the Private Investor under the supervision of the Nodal Agency.
The applicant’s case, as per its agreement with the Nodal Agency, falls under the PEG scheme of ‘Lease and services basis’ type.
As per the scheme of classification of services appended to notification no. 11/2017-Central Tax (Rate), dated 28.06.2017 and its corresponding State tax notification no. 46/ST-2, dated 30.06.2017 the service code 997212 is for renting or leasing services involving own or leased non-residential property. Such services attract 18% GST as per Sr. no. 16 of notification no. 11/2017-Central Tax (Rate), dated 28.06.2017 and its corresponding State tax notification no. 46/ST-2, dated 30.06.2017 - Since, as per the copy of contract/agreement with Hafed, the applicant is providing both the services, i.e., the support services in relation to agricultural produce as well as Real Estate Services in terms of SAC 997212, and since both these services are capable of being provided independent of each other, these cannot be understood to be naturally bundled and supplied conjointly in the ordinary course of business. Therefore, the applicant has/is providing ‘Mixed Supply’ as per section 2 (74) of the CGST/HGST Act, 2017 and attract tax rate of that particular supply which attracts the highest rate of tax in terms of section 8 (b) of the Act ibid.
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2019 (2) TMI 922 - AUTHORITY FOR ADVANCE RULING, HARYANA
Classification of services - business of mining of Boulders in the State of Haryana - whether classifiable under Tariff Heading 2516 or chapter number 9973 - rate of GST - N/N./ 11/2017-CT (Rate) 28.06.2017 - Held that:- Since, a perusal of classification of services shows that services of right to use natural resources classify under tariff 9973 and since description of services under serial no. 17 (i) to (v) does not cover such services of right to use minerals therefore, it would fall under the residual entry at serial no. 17(viii). Being so, the rate of tax applicable on such services, as provided therein, shall be the same rate of tax as applicable on supply of like goods involving transfer of title in goods.
It is evident that service charge by way of annual dead rent or royalty paid for services of granting right to use mineral would attract GST rate as applicable on supply of mineral which is being extracted through such mining - That the minerals which are extracted from the mine are classifiable under Tariff Heading 2516 and leviable to GST @ 5%.
The applicant has misconstrued the entry which in fact casts a liability of tax to be discharged by the recipient on reverse charge basis on licensing services for the right to use minerals including its exploration and evaluation.
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2019 (2) TMI 921 - AUTHORITY FOR ADVANCE RULING, HARYANA
Man power services to Hospital cum General Medical College and State University (Education Institutions) - exempt from GST or not - Held that:- The provisions of clause (b) of the Sr. No. 66 of notification no. 12/2017-Central Tax (Rate) dated 28.06.2017 and corresponding notification No. 47/ST-2 Dt. 30.06.2017 of the State tax apply to services provided to educational institutions providing education up-to higher secondary school or equivalent level only.
The services provided by the applicant, i.e. Man Power services to Hospital - cum - General Medical College and State University do not qualify for exemption under Sr. No. 66 of notification no. 12/2017-Central Tax (Rate) dated 28.06.2017 and corresponding notification No. 47/ST-2 Dt. 30.06.2017 of the State Tax.
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