|
Advanced Search Options
GST - Case Laws
Showing 1 to 20 of 123 Records
-
2022 (6) TMI 1474 - CALCUTTA HIGH COURT
Jurisdiction of initiation of proceeding in question - appropriate officer under the State GST Act - jurisdiction of the respondent DRI officer - HELD THAT:- Prima facie the petitioner has been able to make out a case for an interim order and considering this aspect there will be conditional stay of the impugned adjudication order dated 4th March, 2022 and subject to deposit of 10% of the demand in question by the petitioner within ten days from date and if such payment is made by the petitioner within the time stipulated herein, no coercive action shall be taken against the petitioner for recovery of the demand in question.
List this matter for final hearing after ten weeks.
-
2022 (6) TMI 1461 - AUTHORITY FOR ADVANCE RULINGS, RAJASTHAN
Scope of Advance Ruling - Service recipient, M/s. Jaipur Vidyut Vitran Nigam Limited is a Government Entity or not - clause (zfa) of para 2 of Notification No. 12/2017 - Central Tax (Rate) dated 28.06.2017 as amended by Notification No. 32/2017 - Central Tax (Rate) dated 13.10.2017 - Operation and Maintenance of identified 33/11 KV Grid Sub-Stations to Jaipur Vidyut Vitran Nigam Limited are wholly exempt vide serial number 3 of Notification No. 12/2017 - Central Tax (Rate) dated 28.06.2017 [as amended] or not - HELD THAT:- The words "or a Governmental authority or a Government Entity" has been omitted at serial number 3, in column (3), in the heading "Description of Services" in the said Notification No. 12/2017- Central Tax (Rate) dated the 28th June, 2017 vide aforesaid Notification No. 16/2021-Central Tax (Rate) dated 18.11.2021 which resulted as withdrawn of exemption from tax from 01.01.2022. Thus, as on date there is no exemption is applicable on Pure services (excluding works contract service or other composite supplies involving supply of any goods) provided to the Government Entity by way of any activity in relation to any function entrusted to a Panchayat under article 243G of the Constitution. Hence, applicant is not eligible to avail the said exemption from tax.
The scope of the ruling for Authority for Advance Ruling (AAR) is limited to the transactions being undertaken or proposed to be undertaken. In the instant case, the application seeking advance ruling was filed on 16.11.2021 before the RAAR with respect to supplies undertaken for the period from 01.11.2019 to 30.04.2021. Hence, the case is out of the purview of the Advance Ruling.
-
2022 (6) TMI 1437 - TELANGANA HIGH COURT
Interest on account of delayed filing of GST returns - HELD THAT:- Against the notice dated 29.03.2022, petitioner has filed representation dated 18.04.2022 before respondent No.5 as well as subsequent representation dated 28.04.2022 addressed to respondent No.3 - Without entering into the rival contentions, it would be in the interest of justice if the above representations of the petitioner are considered by the respondents.
The respondent No.3 Commissioner of Central Tax and Customs, Hyderabad GST Commisionerate, Hyderabad directed to consider the representations of the petitioner dated 18.04.2022 and 28.04.202, after giving an opportunity of hearing to the petitioner. Let the above decision be taken by respondent No.3 within a period of 30 days from the date of receipt of a copy of this order.
Petition disposed off.
-
2022 (6) TMI 1415 - KERALA HIGH COURT
Non-inclusion of GST amount in the tender - main contention against the impugned judgment is that Clause 3.3.3 of notice inviting tender is incorrectly and erroneously interpreted - HELD THAT:- In this intra court appeal the respondent/corporation demonstrates how the findings in the judgment are erroneous warranting an interference. The respondent/corporation is the maker of the tender conditions. Clause 3.3.3 in clear terms excludes GST component. Inviting the GST component while interpreting subsequent clauses is impermissible. Being the maker, in the event of arguable ambiguity, the benefit of ambiguity is extended not to the maker but the other party.
The learned single judge has judiciously used his discretion and allowed the writ petition declaring that the terms and conditions in Ext.P1 shall govern the contract and that respondents 2 and 3 have to pay the GST component against the bill raised by the petitioner. The decision cited by the counsel for the appellant only prohibits the writ court from interfering in any contractual matter and the interference in the auction procedure when the decision making process is arbitrary and for any extraneous consideration. In this case, the learned single judge has not gone into the complexities of the clauses in the notice inviting tender nor substituted any interpretation other than those explicitly provided in the clause.
The learned single judge was right in declaring that the GST component was not to be included as per clause 3.3.3 of Ext.P1 and the direction to pay the GST component by respondents 2 and 3 is in tune with the clauses of Ext.P1 and hence there are no grounds to interfere with the judgment of the learned single judge, and hence the writ appeal is dismissed.
-
2022 (6) TMI 1364 - GUJARAT HIGH COURT
Seeking refund of IGST wrongly paid on ocean freight - N/N. 8 of 2017 and 10 of 2017 both dated 28.6.2017 read with corrigendum dated 30.6.2017 - HELD THAT:- This court in MOHIT MINERALS PVT LTD VERSUS UNION OF INDIA & 1 OTHER [2020 (1) TMI 974 - GUJARAT HIGH COURT] held the said notifications to be unconstitutional and ultra vires the statute. The decision has been followed in GOKUL AGRO RESOURCES LTD. VERSUS UNION OF INDIA [2020 (2) TMI 1242 - GUJARAT HIGH COURT], BHARAT OMAN REFINERIES LTD. VERSUS UNION OF INDIA & 1 OTHER (S) [2020 (8) TMI 568 - GUJARAT HIGH COURT]. The decision of this Court in Mohit Minerals Pvt. Ltd., came to be confirmed by the Supreme Court in UNION OF INDIA & ANR. VERSUS M/S MOHIT MINERALS PVT. LTD. THROUGH DIRECTOR [2022 (5) TMI 968 - SUPREME COURT].
The above position and law emanating from the decision of this court in Mohit Minerals Pvt. Ltd. could not be disputed by learned advocates for the respective parties. It may also be mentioned that similar issue came up for consideration before the co-ordinate Bench in ADI ENTERPRISES VERSUS UNION OF INDIA [2022 (6) TMI 849 - GUJARAT HIGH COURT], wherein the question was about refund of the IGST paid pursuant to the aforementioned Notifications. The court directed respondents to refund the amount of IGST already paid by the applicants pursuant to Entry No.10 of Notification No. 10 of 2017.
The claim for refund of the petitioner towards IGST is liable to be favourably considered. The competent authority of the respondents shall verify the amount of refund and grant such refund of the amount of IGST paid by the petitioner pursuant to the Entry No.10 of the above notification within eight weeks from the date of receipt of this order along with the statutory rate of interest - the respondent authorities are directed to accept the physical copy of the fresh application from the petitioner and grant refund with interest.
Petition allowed.
-
2022 (6) TMI 1354 - CALCUTTA HIGH COURT
Inaction on the part of the respondent authorities concerned in completing the investigation - statutory period for completion of investigation - Circular No.131/1/2020-GST dated 23rd January, 2020 - HELD THAT:- Considering the submission of the parties and report submitted by Mr. Banerjee on behalf of the respondents, all the respondents concerned are directed to co-ordinate with each other and complete the investigation in question within six months from date positively and in case of failure to complete the investigation in question within this stipulated time it will be treated as respondent has no case against the petitioner since enough time has already been passed as appears from record and that petitioner has complied with the formalities of submitting the requisition documents on 25th March which is more than a year before.
Learned advocate for the petitioner submits that he is entitled for claim of some refund for which he is free to file appropriate application before the authority concerned. In course of investigation, respondent shall not allow any unnecessary adjournment to the petitioner.
Petition disposed off.
-
2022 (6) TMI 1335 - CALCUTTA HIGH COURT
Seeking extension of time to file affidavit-in-opposition to the writ petition - HELD THAT:- Learned advocate appearing for the respondents time to file affidavit-in-opposition to the writ petition is extended two weeks, petitioners to file reply thereto, if any, within one week thereafter.
List this matter for final hearing after four weeks.
-
2022 (6) TMI 1286 - DELHI HIGH COURT
Validity of search proceedings - Presence of petitioner during search proceedings - HELD THAT:- The petitioner will remain present at the business premises located at 2105, Ground Floor, Bawana Road, Narela, North Delhi, Delhi-110040, on 06.06.2022, at 11:00 AM.
Insofar as the godown is concerned, which is located at Ground Floor, Plot No. 72/20, 21, Bawana Road, Gali No. 2, Prem Colony, Narela, Delhi-110040, the petitioner will remain present at the said premises on 07.06.2022, at 11:00 AM - Ms Shweta Singh, Advocate is also permitted to remain present at the premises referred to hereinabove, on the aforementioned dates, when search is carried out by the respondents. It is, however, made clear that Ms Singh will not intercede/interfere in the search proceedings.
List the matter on 27.09.2022.
-
2022 (6) TMI 1285 - AUTHORITY FOR ADVANCE RULING, MAHARASHTRA
Levy of GST - valuation - reimbursed amount of Stipend received from Industry Partner to be distributed to the trainees at actuals - pure agent service - HELD THAT:- Section 2 (5) of the CGST Act, 2017, defines the term “Agent” as “a person including a factor, broker, commission agent, arhatia, del credere agent, an auctioneer or any other mercantile agent, by whatever name called, who carries on the business of supply or receipt of goods or services or both on behalf of another” - It is found that the Applicant is registered as a facilitator under the National Employability Enhancement Mission (‘NEEM Scheme’). The details of the NEEM Scheme are mentioned in the subject application and are therefore not reproduced again. The Applicant has submitted that, as a NEEM Facilitator, they are responsible to enroll NEEM trainees (`trainees’) and provide them with on job practical training through various Institutes, Factories, etc. (‘Industry Partners’) to enhance the prospects of their employability. The applicant would enter into Agreements to enroll NEEM trainees (‘trainees’) and provide them with on job practical training through the said Industry Partners.
Applicant selects trainees for imparting practical training to them & to coordinate between the trainees and the said Industry Partners for the proper implementation of scheme of training envisaged under the Apprentice Act 1961 and for such purpose, enters into a written agreement with the Industry Partners, for identifying and providing relevant eligible trainees to the Industry Partners, for which a fixed administrative fee per trainee per month will be charged from such Industry Partners and on which the applicant accepts that GST is payable.
Regarding the issue in respect of stipend paid to the trainees by the applicant, it has been submitted by the applicant that the concerned Industry Partners will provide training to the trainees and are required to pay stipend to the trainees as per the NEEM Regulations. Even though, it is seen that the services will be provided by the trainees to the Industry Partners, for which stipend is mandated to be paid to the trainees by the Industry Partners, this stipend is not directly paid to the trainees by the said Industry Partners but will be routed through the applicant as per the NEEM Regulations. The entire amounts received as stipend from the Industry Partners will be paid to the trainees without any amount being retained. Thus, the applicant is only acting as an intermediary in collecting the stipend from the Industry Partners and then disbursing the same to the trainees in full without making any deductions from the stipend before disbursement to the trainees.
The amount of stipend received by the applicant from the Industry Partners and paid in full to the trainees is not taxable at the hands of the applicant. Hence, in view of the submissions made by the applicant and also in agreement with the observations made by the jurisdictional officer, it is held that the stipend paid by the Industry Partners to the applicant to be further paid to the trainees in full does not attract GST and is not required to be added to the taxable value.
In a similar case of IN RE: M/S. YASHASWI ACADEMY FOR SKILLS [2021 (8) TMI 1018 - AUTHORITY FOR ADVANCE RULING, MAHARASHTRA] this Authority has held that the reimbursement by Industry Partner to the applicant, of the stipend paid to the trainees, does not attract tax under the GST Act - In the case of Yashaswi Academy for Skills, the Applicant Companies were registered as agents under National Employability Enhancement Mission (NEEM) of the Government of India and acted as a facilitator for extending support for mobilizing the trainees under NEEM Scheme of Government of India as per regulations, under notification issued by All India Council for Technical Education (AICTE), for providing on-the-job practical training in industries to trainees to enhance their future employability, and for which they entered into agreements with various companies/ organizations (called as industry partners) to impart actual practical training to the students. In the said case also, the applicants, in addition to taxable amounts received from its Industry Partners for services rendered, also received Stipends amounts (payable by the Industry Partners to the Trainees) which was paid in full to the trainees.
Since the matters in the Yashaswi Academy case as case decided by this authority is very similar to the facts of the subject case, there are no reason to deviate from our ruling given in the said case, which are also applicable in the subject case.
GST is not leviable in the instant case.
-
2022 (6) TMI 1284 - NATIONAL ANTI-PROFITEERING AUTHORITY
Profiteering - four towers/blocks of the project Celebrity Gardens - requirement to maintain separate bank accounts for each of the projects registered separately under the RERA Act, 2016 - benefit of reduction in the rate of ITC not passed on by way of commensurate reduction in the price - contravention of section 171 of CGST Act - penalty - HELD THAT:- It is on record that Applicant No. 1 had filed a complaint alleging that the Respondent has not passed on the benefit of ITC to him by way of a commensurate reduction in the price of the flat purchased by him (Applicant No. 1) from the Respondent. It is found that the DGAP, after investigation, has found that the Respondent has not passed on ITC benefit amounting to Rs.1,54,269/-(inclusive of GST) to his recipients/homebuyers as required under the provisions of Section 171 of the CGST Act, 2017.
The Authority finds and determines that the Respondent has profiteered by an amount of Rs. 1,54,269/- for the project 'Celebrity Garden Block K' during the period of investigation i.e. 01.07.2017 to 30.09.2019. The above amount that has been profiteered by the Respondent from his Home buyers in the above mentioned project. The claim of their refund along with the interest @18% thereon, from the date when the above amount was profiteered by him till the date of such payment, in line with the provisions of Rule 133 (3) (b) of the CGST Rules 2017, need to be verified by the concerned CGST/SGST Commissionerate - This Authority under Rule 133 (3) (a) of the CGST Rules, 2017 orders that the Respondent shall reduce the prices to be realized from the buyers of the flats commensurate with the benefit of ITC received by him.
Penalty - HELD THAT:- It is evident from the narration of facts that Respondent has denied the benefit of Input Tax Credit (ITC) to the customers/Home buyers in contravention of the provisions of Section 171 (1) of the CGST Act, 2017 and he has thus committed an offence under Section 171 (3A) of the above Act and therefore, he is liable for imposition of penalty under the provisions of the above Section. However, since the provisions of Section 171 (3A) have come into force w.e.f. 01.01.2020 whereas the period during which violation has occurred is w.e.f. 01.07.2017 to 30.09.2019, hence the penalty prescribed under the above Section cannot be imposed on Respondent retrospectively.
This Order having been passed today falls within the limitation prescribed under Rule 133 (1) of the CGST Rules, 2017.
Application disposed off.
-
2022 (6) TMI 1258 - MADRAS HIGH COURT
Validity of assessment order - search and seizure proceedings - proper service of notices or not - proper opportunity of hearing was provided or not - violation of principles of natural justice - HELD THAT:- There was a surprise inspection in the petitioner's showrooms, Office and Godown from 14.09.2021 to 16.09.2021 and certain defects were pointed out and thereafter, explanation sought for. Though the petitioner had sent their objections and their authorized representative/Chartered Accountant appeared before the respondent, but they were unable to give proper explanation with supporting documents. This is a merit of the case. It is seen that after issuance of notice in Form DRC-01A, dated 06.12.2021, the respondent has issued Form GST DRC-01A. Thereafter, if the petitioner has got any objection and not paid tax as ascertained, a show cause notice has to be issued under Section 74(1) of the TNGST Act and after receiving objections, giving personal hearing, the assessment order ought to have been finalised. In this case, procedure not followed. It is also seen that following the impugned order, the respondent vide Form GST DRC-09, issued a communication, directing the Branch Manager, Axis Bank, Ramanathapuram, to recover the amount due from the petitioner under Section 79 of the TNGST Act, 2017, which is not proper.
The assessment orders, bearing Assessment Nos.33AAQCA6068B1ZR/2020-21, 33AAQCA6068B1ZR/2019-20 and 33AAQCA6068B1ZR/2021-22, dated 31.01.2022, are hereby quashed. The consequential recovery notice, dated 10.06.2022, issued to the Branch Manager, Axis Bank, is also hereby quashed. The respondent is directed to issue notice after following the procedures prescribed under the TNGST Act and issue show cause notice and after giving an opportunity to file their objections, pass appropriate orders on merits and in accordance with law.
Petition allowed.
-
2022 (6) TMI 1257 - CALCUTTA HIGH COURT
Validity of provisional attachment order - proceedings under Section 67 has already been concluded - Section 83 of the CGST Act - HELD THAT:- The order of provisional attachment passed on 20th January, 2021 during the pendency of the proceedings under Section 67 of the CGST Act has worked out as admittedly the proceedings under Section 67 has already been concluded and the department is said to be in the process of proceeding to take action under Section 74 of the CGST Act.
The respondents are directed to intimate the appellants’ banker within one week from the date of receipt of the server copy of this order to lift the attachment of the said bank account - Application allowed.
-
2022 (6) TMI 1256 - APPELLATE AUTHORITY FOR ADVANCE RULING, MAHARASHTRA
Supply or not - mixed supply or not - Liaison activities between India office and Dubai office - host of activities undertaken by the Appellant at the behest of their Dubai Head Office - intermediary Service or otherwise - the activities undertaken by the Appellant can be construed as “Supply” as envisaged under Section 7 of the CGST Act, 2017 or not - place of Supply of the impugned activities is within taxable territory or not - Requirement to obtain registration - HELD THAT:- On perusal of the activities undertaken by the Appellant, it is noticed that the Appellant are undertaking a bunch of activities - On close scrutiny of the activities undertaken by the Appellant, it is noticed that all these activities may be construed as an individual independent supply in itself, if undertaken by the Appellant separately. Further, it is observed that the Appellant are charging, from their Dubai Head Office, a single price or consolidated amount, i.e., reimbursement of the monthly expenses on cost- to- cost basis. Thus, it can be concluded that the bunch of activities undertaken by the Appellant is nothing but the “mixed supply” as provided under Section 2(74) of the CGST Act, 2017.
On perusal of the activities of the Appellant, it is conspicuous that the Appellant, inter-alia, are organizing various seminars, conferences, other interactive events for Indian Business entities and Dubai Business entities/ delegates for the better understanding of the business landscapes in India and Dubai, and for promoting and projecting Dubai as an international business hub as a part of the diplomatic mission of their Dubai Head Office. Thus, such activities of the Appellant can be grouped under the category of support services having the Service Accounting Code 998596 which has the description as Events, exhibitions, conventions and trade shows organization and assistance services - it is opined that the Appellant are providing support services to their Dubai Head Office, which attracts GST at the rate of 18% in terms of item (iii) of the entry at SI.No. 23 of the Notification No. 11/2017-C.T.(Rate) dated 28.06.2017, having the description “Support services other than (i) and (ii) above”.
Whether the said activities undertaken by the Appellant can be construed as “Supply” as envisaged under Section 7 of the CGST Act, 2017? - HELD THAT:- It is concluded that the host of activities carried out by the Appellant will come under the ambit of “Supply” as provided under Section 7 of the CGST Act, 2017, which, inter-alia, covers all forms of supply of goods or services or both made or agreed to be made for a consideration by a person in the course or furtherance of business.
Whether the place of Supply of the impugned activities is within taxable territory, or otherwise? - Section 13 of the IGST Act, 2017 - HELD THAT:- Since, the Appellant are, inter-alia, undertaking numerous activities pertaining to the organization of the various events in the nature of seminars, conference, round table discussions, etc., the place of supply in such cases will be the place where such events have been held. As it is evident that the Appellant are organizing such events in India, the place of supply of such services, provided by the Appellant, will be in India, i.e., in the taxable territory.
Requirement to obtain registration - HELD THAT:- The Appellant are required to obtain GST registration, and pay IGST on the entire amount received from their Dubai Head Office for providing the said mixed supply of support services.
On plain reading of the definition of “consideration”, it is apparent that the a very wide connotation has been given to the term “consideration” by the legislature which is evident by the presence of the expressions “any payment made or to be made, whether in money or otherwise, in respect of, in response to, or for the inducement of, the supply of goods or services or both, whether by the recipient or by any other person”, having a very wide expansion, which would clearly include even the payment, which are in the nature of reimbursement of the expenses. Thus, the cost -to -cost reimbursement, received by the Appellant from their Head Office in respect of the supply of services, will be construed as “consideration”.
Whether the Appellant, i.e., DCCI-L.O. and its Dubai Head Office, i.e., DCCI-H.O. are one and the same person, or otherwise as per the GST law? - HELD THAT:- On perusal of the definition of the term “person”, it is seen “that anybody corporate incorporated by or under the laws of a country outside India” is a person. This means that as per the CGST Act, 2017, DCCI-H.O. is a person as it has been incorporated under the laws of a country outside India. Further, from the same definition of “person”, reproduced above, it is also manifest that “every artificial juridical person, not falling within any of the above” is also a person. This leads us to conclude that DCCI-L.O., i.e., the Appellant, who is also bound to comply with various statutory obligations in India, viz. filing of Annual Income Tax Returns with the Income Tax Authorities, filing of Annual Financial Statements with the Registrar of the Companies under the Indian Companies laws, etc., can definitely be considered as an artificial juridical person. Thus, it is seen that DCCI-H.O. and DCCI-L.O./Appellant are two different persons as per the GST law, and thereby, the activities undertaken by the Appellant at the behest of their Dubai Head Office will clearly constitute supply in terms of Section 7(1)(a) of the CGST Act. 2017 as all the prerequisites of the supply provided under Section 7(1)(a) of the CGST Act, 2017 are being satisfied by the activities undertaken by the Appellant at the behest of their Dubai Head Office.
Thus, the host of activities performed by the Appellant at the behest of their Dubai Head Office will come under the ambit of “Supply” in terms of Section 7(1 )(a) of the CGST Act, 2017, and are required to take GST registration, and discharge their IGST liability, if any, on the amount received from their Dubai Head Office - Appeal filed by the Appellant is not maintainable, and hence hereby, dismissed.
-
2022 (6) TMI 1255 - AUTHORITY FOR ADVANCE RULING, TAMILNADU
Levy of GST - recovery of nominal amount from the employees for making payment to the third-party service provider, providing food in canteen as mandated in the Factories Act, 1948 - HELD THAT:- The applicant provides canteen facility in both the units and follows different modus in running the canteen facility at their units at Kattur and Sathamangalam. The common factor seen is that the applicant while extending the canteen facility, is providing meals/food at concessional rates, i.e., no meal is extended free and specified amount in respect of the food consumed by the employee are collected by the applicant against such consumption of food. Also it is seen that consuming food at the canteen facility made available by the applicant in their premises is not mandatory because the deductions sheet reveals that only a limited number of employees have consumed food at the canteens & also the consumption is limited to certain items/breakfast/lunch, etc, while the number of workers and labourers employed at the units are at large. With the above facts, the question sought on the liability to pay GST on the amount collected by the employees is taken up.
The contention that the activity of supply of food for a nominal charge by them is neither a supply of goods nor a supply of service is not legally tenable.
The next contention of the applicant is that there is no supply between the Applicant and the employees and the Applicant is not engaged in the business of provision of canteen services but has established the canteen as required under the Factories Act - From the provisions of Section 46 of Factories Act 1948, it is seen that the Act mandates establishing a canteen when more than two hundred and fifty workers are ‘ordinarily’ employed in a factory and as per sub- clause (2)(dd) above, certain expenditure are to be borne by the employer - In the case at hand, in both the units, abiding by the above provisions, since the number of workers and contract labourers ordinarily employes exceeds 250 in number, the applicant has established the canteen. Managing committee for the canteen are present in the units as seen from the agreement entered into with the third party vendor and the submissions of the applicant and the menu along with the cost are decided by the said committee. The cost to be borne by the applicant as per the above provisions are borne by the applicant and the employee cost are arrived.
The supply made by a taxable person in the course or furtherance of business is an ‘Outward supply’. It has been brought out above, that establishing canteen is in the furtherance of business of the applicant and supply of food to the employees when the same is not contractually agreed, is not an allowance as a part of the employment. Thus, the provision of food in the canteen for a nominal cost is a ‘Supply’ for the purposes of GST. Schedule II to the CGST Act, 2017 describes the activities to be treated as supply of goods or supply of services - the supply of food is a ‘Supply of Service’.
Whether the amount received from the employees is in the nature of recovery and not consideration as the recovered amount is directly paid to the third-party vendor without any profit element in the hands of the Applicant? - HELD THAT:- The running of canteen in the units of the applicant is in the course of furtherance of business. The applicant has chosen to run the canteen through a third party vendor in one of its units, while in other unit, the same is run by the applicant themselves. It is also clear that in running of such canteens, the employer, i.e., the applicant is mandated to bear certain costs. The contention that the applicant only collects the employee cost and pay the third party vendor & that such employee cost is only a recovery is not acceptable. Provision of canteen facility and bearing certain costs in running of canteen are mandated on the part of the employer as per the Factories Act. Accordingly, such canteens are provided. It has been established that the supply of food in the canteens are ‘Supply of Service’ by the applicant.
In the case at hand, the applicant has established canteen facilities as mandated under Section 46 of the Factories Act, 1948 and supplies food at a nominal cost either directly or through third-party-vendor. The supply of food by the applicant is ‘Supply of Service’ by the applicant to their employees as the same is not a part of the employment contract and the canteen facility is provided as mandated under Factories Act. The nominal cost, which is recovered from the salary as deferred payment is ‘consideration’ for the supply and GST is liable to be paid.
-
2022 (6) TMI 1254 - AUTHORITY FOR ADVANCE RULING, TAMILNADU
Classification of supply - supply of goods or supply of services - naturally bundled composite supply or not - Manufacture and supply of printed leaflet product on the physical inputs owned by the printer while the matter of printing content being supplied by the recipient - HSN heading under 4901 of GST Tariff Act or SAC code 9989, is applicable - determination of tax liability payable on such printed leaflet product supplied - HELD THAT:- Though the purchase Order/Bid furnished do not explicitly say that the scope of applicant is only 'Printing of the content' extended, it is seen from the Item description, that the work involves printing in a particular quality of paper/paper procured from certain Vendors; using particular colour of ink and Art Work and the supply of such leaflets is to be in certain form, i.e., folded and the leaflets are to be supplied in packages of certain number of the products. Thus, it is seen that the applicant undertakes printing of the leaflets using the materials of the specified standards and supplies the printed leaflets - In the case at hand, the recipient gives the content for printing and the applicant undertakes printing using the Paper and Ink purchased on his own account and the printed leaflet is supplied to the recipient. Thus applying the above definition, the supply is a composite supply consisting of printing service alongwith the supply of Paper in the form of printed leaflets. The printing process involves approval of the sample and accordingly printing the approved content/artwork. Thus the supply is a composite supply as per the definition at Section 2(30) of the Act stated above. The predominant element in this composite supply is the one for which the recipient is under taking the transaction with the supplier, i.e., printing of the leaflets. The supply of the material on printing is only ancillary to the main supply.
The supply undertaken by the applicant involves printing and supply as leaflets in the required format; the content which instructs the users of the product in words, intangible inputs whose rights are with customer and shared with the applicant for printing in the required material/media. The nature of the physical inputs is transformed with the printing activities and without the printing, the final product cannot be used as a leaflets as required by the recipient. Thus the predominant activity is printing the contents of the customer in the required tangible inputs sourced by the applicant as per the requirement of the recipient and going by the clarification, the principal supply in the considered transaction is 'Supply of Service' - in the case at hand, the supply made by the applicant to the recipient is a composite supply with 'Supply of Printing Service' as the Principal Supply.
The supply of printing services on paper are classifiable under SAC 998912. The principal supply being the 'Supply of Printing service', the composite supply at hand is classifiable under SAC 998912 and the applicable rate on such supply is that applicable for such supply.
Applicable rate of GST on such supply - HELD THAT:- SAC 9989 covers 'Other Manufacturing Services; Publishing, Printing and reproduction Services; materials recovery services'. The applicable GST rate is provided vide SI.No. 27 of the Notification No. 11/2017-C.T. (Rate) dated 28.06.2017 & Notification G.O.(Ms) No.72 dated 29.06.2017. The said entry has undergone many changes and effective from 1st day of October 2021, the applicable rate is CGST @ 9% as per SI.No.27 of Notification 11/2017-C.T.(Rate) Dated 28.07.2017 as amended by Notification No. 06/2021-C.T.(Rate) dated 30th September 2021 & SGST @ 9% as per SI.No. 27 of Notification G.O. (Ms) No. 72 dated 29.06.2017 No. II(2)/CTR/532(d-14)/2017 as amended.
-
2022 (6) TMI 1253 - NATIONAL ANTI-PROFITEERING AUTHORITY
Profiteering - purchase of Stayfree Sanitary Napkins - allegation is that reduction in the rate of Input Tax Credit has not been passed y commensurate reduction of the price - violation of the provisions of Section 171 of the CGST Act, 2017 - Penalty - HELD THAT:- A plain reading of Section 171 (1) of the CGST Act, 2017 indicates that it deals with two situation:- one relating to the passing on the benefit of reduction in the rate of tax and the second about the passing on the benefit of the ITC. On the issue of reduction in the tax rate, it is apparent from the record that there has been a reduction in the rate of tax from 12% to Nil on “Sanitary Napkins” w.e.f. 27.07.2018, vide Notification No. 19/2018-CTR dated 26.07.2018. Therefore, the Respondent was liable to pass on the benefit of the above tax rate reduction to his customers in terms of Section 171 (1) of the above Act. It is also apparent that the DGAP has carried out the present investigation w.e.f. 27.07.2018 to 31.03.2019.
This Authority had given specific direction to DGAP vide Interim Order No. 15/2020 dated 20.04.2020 to carry out investigation on the specific points that are discussed. Based on the said direction and subsequent investigation, the DGA.P has calculated that the Respondent has increased the base price of the impugned goods during the period from 27.07.2018 to 31.03.2019. Thus, the benefit of reduction in the tax rate has not been passed on to the recipients by way of commensurate reduction in the prices by the Respondent in terms of Section 171 (1) of the CGST Act, 2017 during the above period. Therefore, the DGAP had calculated the profiteered amount on the impugned item i.e. “Sanitary Napkins” by comparing the average pre-rate reduction base price of the impugned item with the actual selling price during the post-reduction period i.e. after 27.07.2018 by the Respondent during the period from 27.07.2018 to 31.03.2019. The mathematical methodology employed by the DGAP to compute the profiteered amount is correct, appropriate, reasonable and in consonance with the provisions of Section 171 (1) of the CGST Act, 2017.
This Authority as per the provisions of Section 171 of the CGST Act, 2017, determines the profiteered amount as Rs. 9,84,354/- for period from 27.07.2018 to 30,03.2019 by the Respondent. The Authority finds that such amount needs to be passed on by the Respondent alongwith interest @ 18% as prescribed to the recipients of supply/customers other than the Applicant No. 1 as the profiteering in respect of the Applicant No. 1 has been found to be Nil as per the DGAP Report dated 24.09.2019. As the recipients other than the Applicant No. 1, of such supply are not identifiable, the Authority directs that, the Respondent shall deposit the said amount with interest in the Consumer Welfare Funds (CWP) of the Central and State Governments as prescribed under Rule 133 (3)(e) of the CGST Rules 2017, within three months of the date of this order, failing which such amount will be recovered under the provisions of CGST Act 2017.
Penalty - HELD THAT:- The Authority finds that the Respondent has contravened the provisions of Section 171 (1) of the CGST Act, 2017. Therefore he is liable for imposition of penalty under the provisions of Section 171 (3A) of the said Act. However, since, the provisions of Section 171 (3A) have come in to force w.e.f. 01.01.2020 and the offence pertains to the period from 27.07.2018 to 31.03.2019, hence penalty under the above section cannot be imposed retrospectively on the Respondent.
This Order having been passed today falls within the limitation prescribed under Rule 133(1) of the CGST Rules, 2017.
-
2022 (6) TMI 1252 - NATIONAL ANTI-PROFITEERING AUTHORITY
Profiteering - construction service supplied by the Respondent - it is alleged that the Respondent had not passed on the benefit of input tax credit (ITC) to him by way of commensurate reduction in the price of the flat purchased from the Respondent - contravention of section 171 of CGST Act - Interest - Penalty - time limitation - HELD THAT:- It is clear from the plain reading of Section 171 (1) that it deals with two situations one relating to the passing on the benefit of reduction in the rate of tax and the second pertaining to the passing on the benefit of the ITC, On the issue of reduction in the tax rate. it is apparent from the DGAP's Report that there has been no reduction in the rate of tax in the post GST period: hence the only issue to be examined is as to whether there was any net benefit of ITC with the introduction of GST On this issue it has been revealed from the DGAP's Report that the ITC as a percentage of the turnover that was available to the Respondent during the pre-GST period (April-2016 to June-2017) was 3.56% and during the post-GST period {July-2017 to March-2019), it was 11.74% for the project “Sierra-Vizag”. This confirms that, post-GST, the Respondent has been benefited from additional ITC to the tune of 8.18% [11.74% (-) 3.56%] of his turnover for the said project and the same was required to be passed on to the customers/flat buyers/recipients. The DGAP has calculated the amount of ITC benefit to be passed on to all the flat buyers as Rs. 6.46,06,227/- for the project “Sierra-Vizag”, the details of which are mentioned in Table-D.
The Authority finds that the Respondent has profiteered by an amount of Rs. 6,46,06,227/- for the Project “Sierra-Virag” during the period of investigation i.e. 01.07.2017 to 31.03.2019, The above amount that has been profiteered by the Respondent from his home buyers in the above said Project shall be refunded by him, along with interest @18% thereon, from the date when the above amount was profiteered by him did the date of such payment, in accordance with the provisions of Rule 133 (3) (b) of the CGST Rules, 2017.
Interest - HELD THAT:- The Respondent is also liable to pay interest as applicable on the entire amount profiteered. i.e. Rs. 6,46.06,227/- for the project “Sierra-Vizag”. Hence the Respondent is directed to also pass on interest @18% to the customers/ flat buyers/recipients on the entire amount profiteered, starting from the date from which the above amount was profiteered till the date of passing on/ payment, as per the provisions of Rule 133 (3) (b) of the CGST Rules, 2017.
Penalty - HELD THAT:- Vide Section 112 of the Finance Act, 2019 specific penalty provisions have been enacted for violation of the provisions of Section 171 (1). Such provisions have come in to force w.e.f. 01.01.2020, by inserting Section 171 (3A). Since, no penalty provisions were in existence between the period from 01.07.2017 to 31.03.2019 when the Respondent had violated the provisions of Section 171 (1). the Authority holds that the penalty prescribed under Section 171 (3A) cannot be imposed on the Respondent retrospectively.
This Order having been passed today falls within the limitation prescribed under Rule 133(1) of the CGST Rules, 2017.
-
2022 (6) TMI 1204 - CALCUTTA HIGH COURT
Levy of IGST - credit card services - interest component of the Equated Monthly Instalments (EMI) of the loan granted by the respondent Bank on credit card - seeking direction upon the Bank and the IGST authorities to refund the IGST collected from the petitioner - maintainability of writ petition as well as lack of jurisdiction of this Hon’ble Court - HELD THAT:- The principal objection of the respondents against maintainability of the instant writ petition is that the writ petition against the bank, which is not a nationalised bank is not maintainable. Article 226(1) of the Constitution of India lays down that notwithstanding anything in Article 32, High Court shall have power throughout the territories in relation to which it exercises jurisdiction to issue to any person or authority, including in appropriate cases, any government, within those territories directions, orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari or any of them for the enforcement of any of the rights conferred by part III and for any other purpose - from a reading of the said constitutional provision it is evident that the High Court has power to issue directions, orders or writs to any person or authority.
The petitioner has prayed for a declaration that the interest component of the EMI of the loan granted by the bank to the petitioner is exempted from the levy of IGST in view of the notification dated June 28, 2017. Apart from the bank the service tax authorities have also been impleaded as party respondents in this writ petition. This writ petition has been filed to compel the Bank and the Service Tax authorities to perform their obligations in accordance with the provisions of the statute regarding levy and collection of IGST and to grant exemption which the petitioner may be entitled to as per the notifications issued under the relevant statutes - by applying the proposition of law laid down by the Hon’ble Supreme Court in FEDERAL BANK LTD. VERSUS SAGAR THOMAS & ORS. [2003 (9) TMI 707 - SUPREME COURT] this court is of the considered view that since the petitioner has prayed for a relief to compel the respondent bank to grant exemption as per the provisions of the relevant statute upon a declaration being made in that regard, the instant writ petition is maintainable.
Territorial jurisdiction of this court - HELD THAT:- It is not in dispute that the office of the respondent no. 1 is beyond the territorial jurisdiction of the High Court at Calcutta. In the credit card statements issued by the respondent no. 1 bank, it has been mentioned that the place of supply is the State of West Bengal. The demand draft was despatched to the petitioner at his residential address which falls within the territorial jurisdiction of this Hon’ble Court. Thus, the part of the cause of action arose within the territorial jurisdiction of this Hon’ble Court - since the part of cause of action arose within the jurisdiction of this Hon’ble Court, this court has no hesitation to hold that this Hon’ble Court has jurisdiction to try and entertain the instant writ petition.
Whether the interest component of EMI of loan advanced by the Bank is exempted under notification dated June 28, 2017? - HELD THAT:- If the amount paid towards dues on the credit card is less than the total amount due finance charges shall be levied on such outstanding (including but not limited to the transaction fee and EMI as above) as per the applicable interest rates. The applicable interest rate shall be mentioned in the monthly statement - It is evident from the offer of loan that the same was not an offer to all intending borrowers but was restricted to a particular category of persons holding the Citi Bank Credit Card. The criteria for processing the loan, the manner in which the EMI of loan is reflected in the Credit Card statements and the charging of interest in case there is a shortfall in the payment of the amount due as well as the mode of payment all goes to prove that the service rendered by the Bank in extending the loan in question is nothing but a service pertaining to the said credit card.
Since this Court has already held that the services rendered by the bank by way of extending loans to the petitioner in the instant case amounts to credit card services, the interest component of EMI of the said loan is nothing but interest involved in credit card services which is not exempted by notification no. 9/2017- Integrated Tax (Rate) dated June 28, 2017 - this Court holds that the interest component of EMI of loan advanced by the bank is not exempted under the said notification dated June 28, 2017. Thus, this issue is answered in the negative and against the petitioner.
Petition dismissed.
-
2022 (6) TMI 1203 - AUTHORITY FOR ADVANCE RULING, MAHARASHTRA
Classification of supply - composite supply or not - arrangement for overhaul and repair of engines - principal supply in overhaul and repair of engines is services or not - rate of tax (GST) for all supplies (consisting of parts/ sub-assemblies and repair services) - HELD THAT:- The applicant has itself stated that the impugned supply can be sub divided into 4 types of supplies out of which it wants this Authority to consider only 2 types of supplies for decision. In other words, it means that the supply under the impugned Tender cannot be considered as a single composite supply of goods and services or both which are naturally bundled because the applicant itself has divided the Tender into 4 different supplies.
It is observed that the Tender is for one Work Order comprising of different types of activities and arrangements all under one document and the applicant wants this Authority to divide the impugned activities artificially in four parts and answer the questions pertaining only to Major overhaul and Overhaul / repair of sub-assemblies. Such division of the single Tender to answer particular situations and ignore other situations will not be the right way to go forward and therefore this Authority will not be able to answer the questions raised by the applicant. Hence the questions raised by the applicant in respect of activity Major overhaul and Overhaul / repair of sub-assemblies, are not being answered.
-
2022 (6) TMI 1168 - BOMBAY HIGH COURT
CENVAT Credit - capital goods - CGST transitional credit not received in electronic credit ledger, inspite of filing TRAN-1 - HELD THAT:- Though petition was served and is getting listed since 21st March 2022, no reply has been filed. Therefore, the averments in paragraph nos.12, 13 and 14 are uncontroverted - to hold petitioner as someone who did not meet the deadline to avail the Cenvat Credit on Capital goods will be too harsh a view to take. Even for a moment if we proceed on the basis that the case did not involve any technical issue as alleged by Respondent No.6 the fact is petitioner filed Form on 26th September 2017.
The petitioner is allowed to file required Form by claiming Cenvat Credit and respondent shall within 2 weeks open online portal/provide a link to petitioner for filing the Form - petition disposed off.
........
|
