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GST - Case Laws
Showing 141 to 157 of 157 Records
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2021 (4) TMI 143
Rate of tax - Composite supply of Works Contract or not - supply of erection, commissioning and installation of ZLD plant along with O&M services for a period of 5 years - taxable at 12% of GST in terms of N/N. 11/2017 Central Tax (rate) Dated 28/ 06/2017 - HELD THAT:- It could be inferred from the definition of the works contract that any contract for erection, installation, commissioning, repair and maintenance of immovable property wherein transfer of property in goods (whether as goods or in some other form) is involved in the execution of such contract qualifies as works contract transaction as per entry No.6 (a) of the Schedule II. In the instant case applicant has undertaken erection, installation, commissioning of the ZLD plant which is permanently fastened to earth and hence the ZLD plant becomes immovable property. Construction, supply of relevant goods, assembly, commissioning of such immovable structure qualifies as a ‘works contract’ transaction.
It is observed that service of supply, erection, commissioning and installation of waste-water pretreatment plant qualifies as Composite supply of Works Contract as defined in clause (119) of section 2 of the Central Goods and Services Tax Act, 2017. The service of setup of ZLD plant is supplied to the KPCL which is Government Entity. Thus all the conditions of Entry No.3(iii) of the Notification No.11/2017 - Central Tax (Rate) dated 28.06.2017 as amended by the Notification No.20/2017- Central Tax (Rate) dated 22.08.2017 and Notification No. 31/2017 - Central Tax (Rate) dated 13.10.2017 are satisfied. Hence the services of setting up of ZLD plant supplied to KPCL by the applicant are classified under SAC 9954 and liable to tax at the rate of 6% under the CGST Act, 2017 and similarly taxable at the rate of 6% under the KGST Act, 2017.
Whether the O&M of said ZLD plant for a period of 5 years qualifies to be a composite supply of works contract or not? - HELD THAT:- The O&M service is inclusive of supply of spares as well as maintenance service, which are taxable supplies. Supply of spares arises consequent to maintenance and hence the said supply is ancillary to the supply of service of maintenance of the ZLD plant. Thus these taxable supplies are naturally bundled and supplied in conjunction with each other where the maintenance service is predominant and hence becomes principal supply. Therefore the O&M service qualifies to be a composite supply of maintenance service.
Whether the setting up of ZLD plant, a composite supply of works contract and the supply of O&M service, a composite supply of maintenance service are a composite supply of works contract or not? - HELD THAT:- The definition of works contract as per Section 2 (119) of CGST Act, 2017 includes repair and maintenance of any immovable property. In the instant case the O&M services are meant for maintenance of the ZLD plant, an immovable property and hence the O & M services are covered under Sr. No. 3 (iii) of Notification No. 11/2017-Central Tax (Rate) dated June 28, 2017 as amended and attracts GST @ 12%.
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2021 (4) TMI 141
Invocation of bank guarantee furnished by the petitioner for release of the goods - petitioner intend in preferring an appeal under Section 107 of the CGST Act - HELD THAT:- In terms of Section 107 of the CGST Act read with Rule 108 of the Goods and Services Tax Rules, the petitioner has time of three months to challenge the order at Ext.P3 which is received by the petitioner on 20.03.2021. The petitioner is intending to file statutory appeal within the prescribed period of limitation.
If the petitioner files statutory appeal challenging the order at Ext.P3 within the prescribed period of limitation, then the respondents should not invoke bank guarantee furnished by the petitioner for a period of one week after filing of the statutory appeal - petition disposed off.
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2021 (4) TMI 140
Seeking to file appeal - appeal could not be filed as the record of the petitioner is lying seized - HELD THAT:- The petitioner to file appeal(s) for the relevant assessment years before the appellate authority in accordance with law expeditiously preferably within a period of two weeks from today. In case the petitioner finds any difficulty in filing the effective appeal for want of some information, the petitioner may move an application to the appellate authority who will consider the same and, if necessary, provide the necessary information to enable the petitioner to supplement his appeal.
Application allowed.
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2021 (4) TMI 134
Revision of declaration in FORM GST TRAN-1 on 18.09.2017 - HELD THAT:- The writ petition is allowed directing the respondents to permit the petitioner to file/revise TRAN-1 either electronically or manually on or before 31.03.2021. However, the Department is reserved liberty to examine the validity and genuineness on merits of the claim of the petitioner, in accordance with law.
Petition disposed off.
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2021 (4) TMI 130
Violation of principles of natural justice - grievance of the petitioner is that the respondent-authorities without conducting fair and proper enquiry and without giving adequate notices to all stake holders and aggrieved persons has passed impugned exparte confiscation order - HELD THAT:- Since prima facie the order under challenge is passed without affording any opportunity to the petitioner, the impugned order/endorsement issued by the 1st respondent as per Annexure-T is not sustainable and the same is set aside. The matter stands remitted back to the 1st respondent to hear afresh by affording opportunity to the present petitioner herein.
The 1st respondent authority is directed to first hear the petitioner on application filed seeking release of goods as well as vehicle - Petition allowed by way of remand.
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2021 (4) TMI 89
Classification of supply - composite supply or not - Applicability of rate of taxes -r works relating to Planning, designing and supervision of construction of various building infrastructure development and interior work etc. - Authority for Advance Ruling have concluded that the works entrusted to the Applicant by IIT, Bhubaneswar under contract/agreement dt.02.05.2016 cannot be termed as composite supply - HELD THAT:- On perusal of the copy of the agreement made between IIT, Bhubaneswar & M/s. NBCC (India) Ltd. executed on dt.02.05.2016, we observed that IIT, Bhubaneswar entrusted the entire project works on turnkey basis to M/s. NBCC (India) Ltd. for works relating to Planning, designing and supervision of construction of various building infrastructure development and interior work etc. in IIT, Bhubaneswar campus and its extended campus. Under para 1 of the agreement, it is clearly mentioned that after completion of the project M/s. NBCC(India) Ltd. will hand over the building to IIT, Bhubaneswar in ready to use condition. Nowhere in the agreement the works order were offered to M/s. NBCC(India) Ltd. differently for different works and also there is no such conditions made in the agreement to make separate invoices for separate works. The agreement clearly speaks that the project was awarded on turnkey basis.
The turnkey project works executed by M/s. NBCC (India) Ltd. is an “works contract” in terms of clause 119 of Section 2 of CGST/OGST Act, 2017 and ought to be treated as a composite supply as per clause 30 of the Section 2 of CGST/OGST Act. Composite supply works contract are treated as a supply of service under Schedule II para 6 of the CGST/OGST Act - the decision of the Authority for Advance Ruling that the works contract entrusted to Applicant M/s. NBCC (India) Ltd. cannot be termed as composite supply, cannot be accepted.
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2021 (4) TMI 88
Classification of services - pure agent services or not - supervisory charges under clause 28(b) of the Office order on charges of KSWC charged to Food Corporation of India (FCI) by the Corporation towards supervision of loading, transportation and unloading of agricultural produce like Rice, wheat etc - whether taxable at the rate of 8% on the amount billed by 'Handling and Transportation' Contractors? - HSN code - HELD THAT:- A contract is an agreement between two or more parties and can be either written or oral. An oral contract is an agreement made with spoken words and either no writing or only partially written and is just as valid as a written agreement. The existence of a contract requires the factual elements of (i) an offer, (ii) an acceptance of that offer which results in a meeting of the minds, (iii) a promise to perform, (iv) a valuable consideration, (v) a time or event when performance must be made (meet commitments), (vi) terms and conditions for performance including fulfilling promises and (vii) performance.
In the instant case the letter of FCI quoted supra contains all the ingredients required for a contract and hence the said letter is nothing but contractual agreement between the applicant and FCI for the applicant to be acting as pure agent of FCI, for the purpose of supervision of handling and transportation of agriculture produce. Further the applicant procures the services of H&T contractors for and on behalf of the FCI and charges actuals separately in the invoice along with their supervisory charges, separately. Thus the applicant squarely qualifies to be a pure agent of FCI in the instant case.
The applicant indubitably is pure agent of the recipient FCI. The applicant is involved in provision of services to supervise handling and transportation of agriculture produce, belonging to the FCI, from railhead to warehousing station and hence procures the services from H&T contractors for the said purpose. Now we proceed to examine the classification of the supply of the said services of the applicant - the Explanatory Notes to the Scheme of Classification of Services stipulates that SAC 999799 includes “Other services n.e.c”. In the instant case, the services provided by the applicant i.e. supervision services are squarely covered under other services n.e.c. and the said supervisory services are exigible to GST at the rate of 9% CGST and 9% KGST or at 18% IGST respectively.
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2021 (4) TMI 87
Classification of supply - supply of goods or supply of services - software license - N/N. 45/2017-Central Tax (Rate), dated 14.11.2017 or N/N. 47/2017- Integrated Tax (Rate) - HELD THAT:- The software supplied by the applicant is a pre-developed or pre-designed software and made available through the use of encryption keys and hence it satisfies all the conditions that are required to be satisfied to cover them under the definition of 'goods'. Further the goods which are supplied by the applicant can't be used without the aid of the computer and has to be loaded on a computer and then after activation would become usable and hence the goods supplies is “Computer Software” and more specifically covered under “Application Software”. Further the Explanatory Notes to the Scheme of Classification of Services stipulates that the services of limited end-user licence as part of packaged software are excluded from the SAC 997331, that covers Licensing services for the right to use computer software and databases. Hence the supply made by the applicant is covered under “Supply of goods” and the said supply is covered under tariff heading 8523.
The Notification No.45/2017- Central Tax (Rate) dated 14.11.2017 and Notification No. 47/2017-Integrated Tax (Rate) dated 14.11.2017 stipulates the rate of CGST / IGST @ 5%, if the goods of computer software is supplied to public funded research institutions subject to fulfillment of the conditions prescribed under column 4 of the said notification. In the instant case the applicant is supplying computer software to National Institute of Science Education and Research, Bhubaneswar, a public funded research institution, under the administrative control of Department of Atomic Energy (DAE), Government of India. Further the said institute has also furnished a certificate as required to fulfill the required condition.
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2021 (4) TMI 86
Classification of supply - Composite supply or not - leasing of property for use as residence along with basic amenities - renting of property - leasing of property for residential subletting - Exemption Notification 12/2017 (Rate) dated June 28, 2017 - HELD THAT:- A Rooming house is a residential house, of which most or some of the rooms are rented out to paying customers. It is a place where individuals who are living in rent in that house shares the bathroom and the kitchen. The Explanatory Notes to the Scheme of Classification of Services stipulates, at the exclusion clause to the SAC 997211, that accommodation services provided by rooming houses are covered under SAC 99631. Further SAC 996311 covers Room or unit accommodation services and includes accommodation services consisting of rooms or units, with or without kitchens & with or without daily housekeeping services, provided by Hotels, INN, Guest houses, Clubs & other similar establishments on a single or multi occupancy basis, for purposes of leisure or business or others - the services of the applicant squarely get covered under SAC 996311 as accommodation services and hence the said services are not covered under renting of residential dwelling.
It is pertinent to mention here that the “Goods and Services Tax” (GST) is a transaction based tax, with seamless input tax credit at each transaction level. In the instant case two transactions are involved. The first being a transaction between the applicant & the business entity and the second between the business entity & the actual tenant. Thus the two transactions are different and the taxability / exemption of these transactions need to be examined individually.
In the transaction between the applicant & business entity, the renting of residential welling is not for use as residence by the business entity but in the course or furtherance of the business of the said entity and hence the exemption under entry No.12 of Notification 12/2017-Central Tax (Rate) dated 28.06.2017 is not applicable to the impugned transaction. On the other hand in the transaction between the business entity and the tenant, the service amount to renting/leasing of rooming house which falls under accommodation services that get covered under SAC 996311 and hence the exemption under entry No.12 of Notification 12/2017-Central Tax (Rate) dated 28.06.2017 would not be applicable to the said transaction.
Leasing of property for use as residence along with basic amenities, in the instant case, is covered under accommodation services, as ruled in the preceding paras, falls under SAC 996311 and hence would qualify as composite supply under Section 2(30) of the CGST/KGST Act, 2017 - Renting of property by Applicant is not covered under entry 12 of Notification 12/2017-Central Tax (Rate) dated 28.06.2017, as their services are covered under accommodation services falling under SAC 996311 - the exemption under entry 14 of Notification 12/2017-Central Tax (Rate) dated 28.06.2017 is available to the transaction of the applicant - Leasing of property for residential subletting would not be covered under the exemption for residential dwelling under entry 12 Notification 12/2017-Central Tax (Rate) dated 28.06.2017, as the two are different and individual transactions.
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2021 (4) TMI 85
Provisional Attachment of Bank Accounts - Jurisdiction of Commissioner in the MGST Act - Section 83 of the MGST Act - HELD THAT:- Since the power under section 83 is vested in the Commissioner, it is necessary to refer to the definition of Commissioner in the MGST Act. Section 2 (24) of the MGST Act defnes 'Commissioner' to mean the Commissioner of State Tax appointed under section 3 and includes the Principal Commissioner or Chief Commissioner of State Tax appointed under section 3. Though appointment of the Commissioner is made by the State Government under section 3, under sub-section (3) of section 5, the Commissioner may delegate his powers to any other ofcer who is subordinate to him, subject to such conditions and limitations as may be specifed by him.
The search and resultant investigation was carried out in respect of M/s. Prarush Impex. Authorization under section 67 was given in respect of M/s. Prarush Impex, that too by an officer of the rank of Deputy Commissioner though as per section 67 such authorization should be by a proper ofcer not below the rank of Joint Commissioner There is no such authorization under section 67 of the MGST Act in respect of M/s. Praful Nanji Satra. Shri Praful Nanji Satra was summoned under section 70 of the MGST Act to tender evidence as a witness in connection with proceedings under section 67 of the MGST Act and section 64 of the Maharashtra Value Added Tax Act, 2002 in the case of M/s. Satra Retail Private Limited which prima-facie is a diferent business entity distinct from M/s. Praful Nanji Satra. Thus, it is evident that there was no proceeding against M/s. Praful Nanji Satra or against Shri Praful Nanji Satra under section 67 of the MGST Act. If that be so, then invocation of power under section 83 of the MGST Act against the petitioner would not be justified.
Section 83 does not provide for such delegation or authorization. The opinion contemplated under section 83 of the MGST Act that to protect the interest of government revenue, it is necessary to provisionally attach any property including bank account has to be necessarily that of the Commissioner. No such opinion of the Commissioner is discernible from the record. Attachment of property including bank account of a person even if provisional is a serious intrusion into the private space of a person. Therefore, section 83 of the MGST Act has to be strictly interpreted - Since the impugned attachment of bank account has been found to be without jurisdiction, availability of alternative remedy in the form of fling objection under rule 159(5) of the MGST Rules would be no bar to the petitioner from seeking relief under writ jurisdiction. Even here also it is doubtful whether the Joint Commissioner to whom the representation dated 01.07.2020 was addressed could have at all exercised power under rule 159(5) of the MGST Rules when the authority to do so is the Commissioner.
The impugned provisional attachment order cannot be sustained - Petition allowed.
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2021 (4) TMI 81
Principles of Natural Justice - levy of tax and penalty imposed without opportunity of hearing provided - Cancellation of petitioner's registration due to non-filing of returns, which was rectified later and tax with late fee already paid - HELD THAT:- On perusal of the contents of the notice issued by the third respondent, it is nowhere found in the said notice that personal hearing has been afforded to the petitioner herein. In the impugned order also, it is nowhere mentioned that such opportunity was afforded to the petitioner.
The matter is remitted to the file of the third respondent to pass orders afresh in accordance with law - petition allowed by way of remand.
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2021 (4) TMI 80
Enhancement of CENVAT Credit - applicability of first proviso to Section 140(8) of the Central Goods and Services Tax Act, 2017 - HELD THAT:- The difference quantified by the petitioner is an amount equivalent to ₹ 7,44,483/-.
The matter requires examination - Issue notice. Mr. Harpreet Singh, who appears on advance notice, accepts service on behalf of the respondent.
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2021 (4) TMI 76
Levy of GST - printed books - submission is that while the goods themselves may or may not be taxable, the requirement of the registration is mandatory under the OGST Act - HELD THAT:- The bid of the Petitioner was rejected for non-submission of the GST certificate. The other bidder M/s.Padmalaya submitted a valid GST Certificate. However, the bid of M/s.Padmalaya was rejected for nonsubmission of other documents. It is also pointed out that similar tenders incorporating submission of GST registration certificate as a conditions have been issued by the SCB Medical College and Hospital, Cuttack and the Indira Gandhi Institute of Technology, Dhenkanal.
There is merit in the contention of Mr. Muduli that the issue of a particular product not being amenable to GST is very different from the requirement of a supplier of goods having to get a valid GST registration. As pointed out, it is quite possible that in future the goods that are presently exempt from GST, may be amenable to it - the Court is not persuaded that any direction should be issued to Opposite Party No.1 to delete the above requirement as one of the essential conditions to be fulfilled by the bidders.
Petition dismissed.
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2021 (4) TMI 73
Simultaneous investigation by the Central and State GST authorities - Non-payment/short-payment of tax dues - erroneous release of refund - wrongful availment/utilization of input tax credit - Section 74 of the Odisha Goods and Services Tax Act - HELD THAT:- It may be noted that the period of enquiry as far as Central tax authority is concerned is from July, 2017 to June, 2018 whereas Opposite Party No.3 has issued a show cause notice specific for March, 2018 and, therefore, there is also an overlapping of the periods.
The Court quashes the show cause notice dated 23rd July, 2019, the impugned order dated 5th November, 2019 including the order dated 4th November, 2019 all passed by Opposite Party No.3 and directs that till the conclusion of the proceeding initiated against the Petitioner by the DGGSTI, no coercive action be taken against the Petitioner by the Opposite Party No.3 - Petition allowed.
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2021 (4) TMI 31
Validity of Summons issued - jurisdiction to initiate proceedings under the CGST/SGST Act - attachment of Bank Accounts of petitioner - HELD THAT:- The summons, which has been issued under Section 70 of the CGST Act cannot be construed as a notice affording an opportunity of hearing to the first respondent, in terms of Sub- Rule 5 of Rule 159 of the CGST Rules. The summons is in connection with the investigation initiated against the first respondent. Therefore, the appellant cannot take umbrage under the summons, dated 27.01.2021 to be construed as a notice under Rule 159(5).
In the considered view of this Court, an order of attachment of the first respondent's bank account, which are stated to be 14 in number, should be for the purpose of protecting the interest of the Government Revenue and the Commissioner should be of the opinion, it is for such purposes and he is required to pass an order in writing attaching provisionally any property including bank account. The procedure is in terms of Rule 159 of the CGST Rules - It is submitted by the learned counsel for the appellants that the impugned order dated 10.03.2021 is yet to be given effect to and it is also submitted that the interest of Revenue would suffer, if the attachments are to be lifted at this stage, especially, when the first respondent is not cooperating in the investigation and therefore, the Court may fix a time frame within which the request for lifting the provisional attachment is decided by the first appellant.
The authorized representative of the first respondent shall appear before the first respondent at 11.00 AM on 29.03.2021 - an opportunity of personal hearing be granted to the authorized representative - Appeal allowed in part.
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2021 (4) TMI 3
Attachment of bank Accounts of petitioner - HELD THAT:- As the bank attachments are consequent upon the impugned summons and by virtue of the summons being kept in abeyance, the attachments will have to stand lifted as well. This is particularly since, the summons has itself been challenged on the ground of lack of jurisdiction, as noted by me in paragraphs 3 & 4 of order dated 08.02.2021. There is a specific direction to the Assessing Authority to lift the attachments of the bank accounts.
List this matter on 24.03.2021 along with W.P. No.4922 of 2020 and etc. batch.
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2021 (4) TMI 2
Authorisation of officers of State tax or Union territory tax as proper officer in certain circumstances - HELD THAT:- The provisions of Section 6 of the Central Goods and Services Tax Act, 2017 provide for the authorisation of officers of State tax or Union territory tax as proper officer in certain circumstances to ensure that there is no overlap in the assumption of jurisdiction by the officers in respect of the same subject matter for the same period.
In the present case, notices have been issued by the Assistant Commissioner of SGST /R3 on 17.12.2020 and reply furnished by the petitioner on 29.12.2020. Thus proceedings have been initiated by the State/R2. The impugned summon issued by the Central authority/R1, is kept in abeyance till the next date of hearing.
List on 10.03.2021.
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