|
Advanced Search Options
GST - Advance Ruling Authority - Case Laws
Showing 1061 to 1080 of 2619 Records
More information of case laws are visible to the Subscriber of a package i.e:-
Party Name, Court Name, Date of Decision, Full Text of Headnote and Decision etc.
-
2021 (4) TMI 508
Classification of goods - rate of GST - parboiling and drier plant - part of rice milling machinery as specified in the Notification dated 28-06-2017 or not - to be classified under HSN 8437 or under HSN 8419? - HELD THAT:- As there was conflicting judgments on the issue in the case of JJYOTI SALES CORPORATION VERSUS COMMISSIONER OF C. EX., PANCHKULA [2011 (3) TMI 1317 - CESTAT, NEW DELHI] classifying par-boiling machine and dryer under 8419 of Central Excise Tariff and in the case of SKF BOILERS & DRIERS (P) LTD. VERSUS COMMISSIONER OF C. EX., MANGALORE [2010 (10) TMI 230 - CESTAT, BANGALORE] classifying the same machines under 8437, the Hon'ble President of CESTAT constituted a Larger Bench as per the directions of the Hon'ble Supreme Court in JYOTI SALES CORPORATION VERSUS COMMISSIONER OF CENTRAL EXCISE, PANCHKULA [2016 (2) TMI 973 - SUPREME COURT] to resolve this conflict and to decide the appropriate classification of the par boiling machine and drier.
The Hon'ble Tribunal Larger Bench judgment in the case of M/S JYOTI SALES CORPORATION, M/S PUNJAB FABRICATOR VERSUS CCE, PANCHKULA [2016 (11) TMI 767 - CESTAT CHANDIGARH] held that par boiling machine and dryer is classifiable under Heading 8419 of the Central Excise Tariff and there being on stay on the order by the Apex Court which is also in conformity with the Board's Circular No.982/06/2014-CX, dated 15-05-2014 issued in F.No.167/42/2009-CX.1, we observe that the goods under reference merits classification under 8419 attracting 9% CGST and 9% SGST.
-
2021 (4) TMI 424
Classification of supply of goods/services - rate of GST applicable - Restaurant services - Cakes, bakery items, ice creams, chocolates, drinks and other eatable products prepared at the premises of the applicant and supplied to the customers - facility to consume the same in the air-conditioned premises itself covered under the restaurant services - composite supply or not - supply of items such as birthday stickers, candles, birthday caps, snow sprays etc. related items - principal supply of goods - sale of handmade chocolates which are manufactured in the workshop of the Applicant - applicability of composition scheme of tax or not.
Cake, Ice Cream and other items of food which are made to order along with certain services - HELD THAT:- The transaction of the applicant is examined and it was found that the applicant is supplying Cake, Ice Cream and other items of food which are made to order along with certain services. Hence the applicant is supplying both goods and services - Since the supplies made by the applicant in its outlets involve both supplies of goods and services, with one of them as principal supply i.e. supply of goods which are naturally bundled and supplied in conjunction with each other, therefore, the same has to be considered as a composite supply. Further, Restaurant Services have been defined under the purview of composite supply (in clause (b) of para 6 of Schedule -II) - the composite supply of goods being food or any other article for human consumption or any drink, where supply or service is for a consideration, then such composite supply shall be treated as a supply of services. Since the applicant is supplying ice creams, cakes and other eatables, which are items for human consumption, by way of or as part of any service or in any other manner, the composite supply has to be treated as a supply of services, more specifically the 'Restaurant Service' - the applicant is supplying items of food as a part of service and since the provision of eating in the premises is provided or the customers may take the same away from the applicant's place, the transactions under question are covered under the amended provision of Entry 7(i) of Notification No. 11/2017-Central Tax (Rate), dated 28-6-2017 as amended by Notification No. 46/2017-Central Tax (Rate), dated 14-11-2017 and attracts a tax of 2.5% without any input tax credit.
Supply of items such as birthday stickers, candles, birthday caps, Balloon, Carry Bags, snow sprays etc - HELD THAT:- The said related items are being purchased and sold as such without any further processing in the restaurant. These items are not articles of foods and drinks and are covered under goods. Sale of such bought out goods as such, is not a service but sale of goods - Since this notification is applicable only to supply of services and not supply of goods, only Notification No. 1/2017-Central Tax (Rate) is applicable and hence all the supply of bought out goods as such which are enlisted by the applicant is taxable as 'supply of goods' and at rates applicable as per Notification No. 1/2017-Central Tax (Rate), dated 28-6-2017 as amended from time to time - since the goods are supplied and output tax is payable on the same, the applicant is eligible to take applicable input tax credit which is admissible as per the GST laws.
Chocolates - HELD THAT:- The raw chocolates are manufactured in the nearby workshop of the applicant which are utilised for the purpose of providing other services such as shakes, brownies and are also retailed by packing in different containers as per the choice of the customer . In no case, chocolates are sold as such from the work shop but are customized and sold from the outlets - the sale of handmade chocolates which are manufactured in the workshop and brought to the outlets for further processing will be covered under the 'restaurant services'.
-
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%.
-
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.
-
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.
-
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.
-
2021 (3) TMI 1380
Input Tax Credit - goods/services received for construction of hotel building - work contract service received for construction of hotel building - goods/services received for construction of banquet hall which is rented further to customer - work contract service received for construction of banquet hall which is rented further to customer - input credit on work contract service or any goods/service received for construction of such hotel/banquet hall - expression “plant & machinery” would include hotel/banquet building' under section 17 - specified goods viz. lifts, sanitary items, underground cables etc. fall under the expression “plant & machinery” or not - freight paid to GTA on such items under RCM - Section 17(5)(c) & 17(5)(d) of CGST Act.
HELD THAT:- Powers to restrict flow of credit also exist under Section 16(1) of the CGST Act which empowers the Central Government to impose conditions and restrictions on availing input tax credit. This shows a Legislative intent that input tax credit may not always be allowed partially or fully. Input tax credit provisions do not provide for that all the tax paid on inputs should be available as credit. Some credits have been denied under Section 17 in the Act itself and to allow flexibility, the Act provides that restrictions can be placed on availability of credit - under the GST regime, more input tax credit is available to tax payers along the entire supply chain as compared to the previous tax regime. Further, the transitional provisions under the CGST Act provide adequate credit of taxes accumulated under the erstwhile taxation regime to taxpayers in the GST regime.
The legislative intent flows from the sovereign power given in the CGST Act, 2017 vide Section 16(1) of the Act. As per said provision input tax credit is allowed to a registered person subject to such conditions and restrictions as the Government thinks proper, against the supply of goods or services received which are used or intended to be used in the course or furtherance of his business. Here it is pertinent to mention that construction of an immovable property (hotel/restaurant or banquet hall) is a different business and hotel accommodation or renting of banquet hall is a different business. Thus supply chain is not the same for both the businesses. The thin line here is the break in the nature of business. For both the businesses input supply of goods or services are totally different from each other. Input supply of goods or services received for one business cannot be used for furtherance of other business.
Lifts, Sanitary items and underground cables etc - HELD THAT:- Lifts, Sanitary items and underground cables etc. being integral parts of a building are immovable properties as these items are attached to building for the permanent beneficial enjoyment of the said building and therefore cannot be termed as “plant and/or machinery”.
Availability of input credit on the same and freight paid to GTA on such items under RCM, Repair & maintenance of specified goods and Architect services etc. - HELD THAT:- Section 17(5)(c)(d) blocks credit of input tax when works contract services are supplied for construction of an immovable property as well as when goods or services or both received by a taxable person for construction of an immovable property where immovable property is not “plant and/or machinery”. Since Lifts, Sanitary items and underground cables etc. are also immovable property therefore input tax credit of works contract service supplied for construction of these items or goods or services or both received for construction of these items together with construction of hotel/banquet hall will also not be available to the applicant, however this aspect of allowing input tax credit under Section 17(5)(c) & (d) is pending decision before Hon'ble Supreme Court in case of M/s Safari Retreats Pvt. Ltd [2020 (3) TMI 1150 - SC ORDER].
Repair & Maintenance itself is not a construction service. Roll of repair or maintenance starts when a building or any immovable property comes into existence. Repair & Maintenance is done on the already constructed buildings, civil structures etc. Further, input tax credit of the GST paid on Repair & Maintenance service supplied for repair or maintenance of an immovable property is not denied under CGST Act. Therefore input tax credit of the GST paid on Repair & Maintenance service is allowable under CGST Act.
-
2021 (3) TMI 1093
Classification of Supply - sale from the portion of the sweetmeats and bakery shop - input tax credit - supply of food items and beverages from the facility which offers the opportunity of eating at the same premises - can be classified as restaurant services attracting a rate of GST of 5% or not? - input tax credit be availed on restaurant service - receipt of common input tax credit in the form of inputs, input services and capital goods, will amount of reversal of input tax credit or not - catering services provided to the educational institution, is exempt supply or not.
Supply of food and beverages from the sweetmeats counter by the applicant - HELD THAT:- Supply of food and beverages from the sweetmeats counter by the applicant, where the customers have not been provided with any services in relation to consume the same in the premises, shall be categorized as supply of goods and the applicant is eligible to avail input tax credit in respect of such supply of goods subject to conditions as laid down in Chapter V of the GST Act and rules made there under - It appears from the mode of business as carried out by the applicant that when goods are supplied from the sweetmeats parlour without any element of supply of services or as a part of any services, it cannot be considered as a ‘composite supply’. Such supplies shall be treated as supply of goods and shall attract tax accordingly.
Restaurant services or not - Supply of food items and beverages by the applicant which offers the facility of eating in the same premises along with takeaway - HELD THAT:- Supply of food and beverage items made in the restaurant or as takeaways from the restaurant counter having an element of supply of services shall qualify as ‘composite supply’. The principal supply being the supply of restaurant service, tax on such supply shall be levied according to entry serial number 7 of the Notification No. 11/2017- Central Tax (Rate) dated the 28th June, 2017, as amended from time to time (corresponding West Bengal State Notification No. 1135 F.T. dated 28.06.2017).
Supply of catering services to an educational institution - HELD THAT:- The term ‘catering’ has not been defined under the GST Act. In Cambridge Dictionary, ‘catering’ is defined as any job making or serving food. In Collins Dictionary, ‘catering’ has been defined as the activity or business of providing food for people - In the present case, the applicant provides catering services to an educational institution which provides education services up to secondary school. Reference may be drawn to para 2 of the Circular No. 85/04/2019-GST dated 01.01.2019 issued by the Tax Research Unit, Department of Revenue, Ministry of Finance, Government of India, where it has been clarified that “A supply which is specifically covered by any entry of Notification No. 12/2017-Central Tax (Rate) dated 28-06-2017 is exempt from GST notwithstanding the fact that GST rate has been prescribed for the same under Notification No. 11/2017-Central Tax (Rate) dated 28.06.2017.” - thus, Supply of catering services to an educational institution providing education services up to higher secondary school or equivalent, therefore, shall get covered under the entry serial number 66 (b)(ii) of the Exemption Notification No. 12/2017- Central Tax (Rate) dated 28.06.2017 and shall be exempted from payment of tax.
Outdoor Catering services or not - Supply of food and beverages to the auditor, guests/ parents on programme days - HELD THAT:- The agreement made between the applicant and Sri Sri Academy also requires the applicant to provide food and beverages to the auditor, guests, guests /parents on programme days. Evidently such supplies of services are event based and occasional in nature and falls under the category of ‘outdoor catering’. The supply, therefore, shall attract tax @ 5% vide entry serial number 7(iv) of the Notification No. 11/2017- Central Tax (Rate) dated the 28th June, 2017, as amended from time to time (corresponding West Bengal State Notification No. 1135 F.T. dated 28.06.2017, as amended from time to time) without credit of input tax charged on goods and services used in supplying the services.
Input Tax Credit - HELD THAT:- The applicant shall follow the principle of apportionment of credit as laid down in sub-section (1) and (2) of section 17 of the GST Act read with rule 42 and 43 of the CGST/WBGST Rules, 2017 in respect of common input tax credit in the form of inputs, input services and capital goods.
-
2021 (3) TMI 916
Classification of goods - rate of GST - erecting and commissioning of lifts installed for domestic use - HELD THAT:- Explanatory Notes to the Scheme of Classification of Services stipulates that the SAC 995466 deals with Lift and escalator installation services and includes installation services of lifts, escalators, travelators (moving sidewalks) etc. Thus the impugned service is clearly covered under SAC 995466.
Applicable rate of GST - HELD THAT:- Notification 11/2017-Central Tax (Rate) dated 28.06.2017, as amended, stipulates the rate of GST on the services covered under 995466 at 18%, in terms of Sl. No.3(xii). Further the said GST rate is irrespective of the place of installation i.e. at the residence or at the mall or shopping complex and also irrespective of the intended usage of the lifts/escalators either for domestic use or commercial use.
-
2021 (3) TMI 915
Classification of goods - PP Non-Woven Bags - whether PP Non-woven bags (made Raw materials - PP granules (HSN 39021000) which are used for manufacture of Non-woven fabrics (HSN 5603) which are further used for manufacture of PP Non-woven bags by stitching) classifiable under HSN 63059000 or HSN 39232990? - HELD THAT:- In the subject case, the applicant is manufacturing PP Non-woven bags, made from non-woven fabrics of HSN 5603 and is classifying the same as bags made of technical textiles under HS code 63053900 /63059000 and paying GST @ 5% and the raw materials used are PP Granule of HS code 39021000 - the goods/articles covered under Chapter 39 cannot be classified under any of the Chapters falling under Section XI. Consequently it is clear that articles of plastics specified under Chapter 39, even if woven, are not to be classified under any of the Chapters including Chapter 63 falling under Section XI.
The item “Polypropylene Non-woven Bags” has to be classified under HSN code 39232990 and not to be classified under HSN code 63059000 and to be taxed at 18% not at 5%.
-
2021 (3) TMI 914
Exemption provided in SI.No.54(e) under Heading 9986 of GST Notification No.12/2017-Central Tax (Rate) dated 28.06.2017 - services such as loading, unloading, packing, storage or warehousing of imported agricultural products including wheat, to any importer or trader - HELD THAT:- On perusal of the Notification 12/2017 Central Tax (Rate) dated 28.06.2017, it is clear that for getting eligibility for exemption under SI.No.54 (e) covered under Heading 9986 the services of loading, unloading, storage or warehousing have to fulfil the conditions mentioned therein i.e. the Services need to be relating to cultivation of plants and rearing of all life forms of animals, except the rearing of horses, for food, fibre, fuel raw material or other similar products or agricultural produce - the said services of loading, unloading, packing, storage or warehousing rendered by a taxpayer can be eligible for exemption only if they are rendered for the above purposes as clearly defined in the Notification i.e. only if the services are extended till the products are taken to primary market for disposal and as a corollary any services extended beyond the stage of primary market are not eligible for classification under the Service Accounting Code 9986 and hence cannot be considered for exemption under the said Notification.
The applicant is providing the services of loading, unloading, packing, storage or warehousing in respect of the 'wheat' which is procured from the farmers from the foreign country and after getting imported into India at Karaikal Port is destined to importer's factory for further processing and it is not destined to the primary market as required for the services to be classified under sl. No. 54 (e) of Heading 9986 of the said exemption Notification. Therefore, the said services rendered by the applicant in the instant case are not eligible for the exemption under the said Notification - Application disposed off.
-
2021 (3) TMI 895
Levy of GST - amounts collected from its members for setting up the 'Sinking Fund'/ Corpus Fund - supply of goods or services or both - HELD THAT:- The applicant making specific reference to the bye law at Sl.No.23, which deals with sources of funds and accounting and sub entry 3 of the said entry deals with sinking fund, claims that the fund shall be utilized exclusively for replacing plant, machinery or equipment as and when such items become unserviceable; they collect the amount towards corpus / sinking fund for future supply of services meant for its members; the corpus fund or sinking fund is mandatory under the Bye-laws of the Co-operative Societies / Resident Welfare Associations and is in the nature of deposit towards unforeseen events or planned events. Further, the applicant relies upon the ruling of this authority in the case of M/s. Prestige South Ridge Apartment Owners' Association, Bengaluru.
Whether the amounts collected by the applicant towards sinking fund form part of consideration towards the services being provided by them? - HELD THAT:- There are certain distinguishable features of both advance and deposit and advances defer from the deposits. The amounts that are not returnable can be termed as advances. Also the bye laws of the applicant association are silent on this issue and hence the amounts collected are indubitably advances but not the deposits.
Classification of the service to be provided by the applicant as the taxability of the amounts collected towards sinking fund - HELD THAT:- SAC 9995 covers the services provided / to be provided by the applicant to its members under “Services of Membership Association”. The said services are taxable to GST @ 18% in terms of Sl.No.33 of Notification No.11/2017-Central Tax (Rate) dated 28.06.2017, as amended.
-
2021 (3) TMI 708
Classification of services - services provided by main contractors - pure services or not - Project Development Service and Project Management Consultancy services (PMCS) provided by the main contractors to SUDA’ - Project Management Consultancy Services for PMAY - activity in relation to functions entrusted to Panchayat or Municipality under Article 243G or Article 243W respectively - service provided by the sub-contractor to the main contractor - exemption as per Sl. No 3 of Notification No. 12/2017-Central Tax (Rate), dated 28th June, 2017 (as amended from time to time).
Project Development Service and Project Management Consultancy services (PMCS) provided by the main contractors to ‘SUDA’ - Project Management Consultancy Services for ‘PMAY’ - activity in relation to functions entrusted to Panchayat or Municipality under Article 243G or Article 243W respectively, of the Constitution of India or not - HELD THAT:- SUDA has been established as a state level nodal agency, under the department for Urban Employment and Poverty Alleviation by Uttar Pradesh Government. This agency is registered under the ‘Registration of Societies Act’ since 20th November’ 1990 - Further, as per website of Pradhan Mantri Awas Yojana-Housing for All (Urban), Ministry of Housing and Urban Affairs, the PMAY is a Scheme to provide central assistance to Urban Local Bodies (ULBs) and other implementing agencies through States/UTs for Rehabilitation of existing slum dwellers using their land as a resource through private, participation, and affordable Housing in Partnership.
Thus, the Consultancy services rendered under the contract with State Urban Development Agency, Uttar Pradesh (SUDA), and for PMAY are in relation to functions entrusted to Municipalities under Article 243W and to Panchayats under Article 243G of the Constitution of India.
Whether such services provided would qualify as “Pure services (excluding works contract service or other composite supplies involving supply of any goods)” as provided in serial number 3 of Notification No. 12/2017- Central Tax (Rate) dated 28 June, 2017, as amended? - HELD THAT:- The services mentioned in the contract would qualify as Pure Service (excluding works contract service or other composite supplies involving supply of any goods)” as provided in serial number 3 of Notification No. 12/2017- Central Tax (Rate) dated 28 June, 2017, as amended (S. No. 3A) by Notification No. 2/2018- Central Tax (Rate) dated 25 January, 2018 issued under Central Goods and Services Tax Act, 2017 (CGST) and corresponding Notifications No. - KA.N.I.-2-843/X1- 9 (47) / 17 -UP. Act-1 2017 - Order - (10) - 2017 Lucknow, dated June 30, 2017 issued under Uttar Pradesh Goods and Service Tax Act, 2017 (UPGST Act), where the Project cost includes the cost of service rendered along with reimbursement of cost of procurement of goods for rendering such service, and, thus, be eligible for exemption from levy of CGST and UPGST, respectively.
Whether the services provided by the applicant would be exempted or not, in terms of Notification No. 12/2017 -Central Tax (Rate) dated 28th June 2017, as amended? - HELD THAT:- The main contractors have entered into an agreement with SUDA for providing “Preparation of Detailed Project Report” and providing “Project Management Consultancy Service” under Pradhan Mantri Awas Yojna, the service which was further sublet to the applicant by the main contractors - From perusal of entry no. 03 of the Notification No. 12/2017, it is observed that service should be pure service, supplied to specific class of recipient and should be in relation to any function entrusted to panchayat or municipality under article 243G or 243W of the constitution - thus, the service of providing “Preparation of Detailed Project Report (DPR)” and providing “Project Management Consultancy Service (PMC)” under Pradhan Mantri Awas Yojna, by the applicant, in terms of contract entered between main-contractor and SUDA and sub letting of same contract by the main contractor to the applicant, is exempt from GST.
-
2021 (3) TMI 707
Classification of supply - supply of services or not - subsidized shared transport facility provided to employees in terms of employment contract through third party vendors - valuation of subsidized shared transport facility provided to employees under employment contract - classification of activity of arranging transport facility for employees - person liable to pay GST - Rate of GST.
HELD THAT:- The applicant is transferring the entire amount collected from their employees, to the third party vendor who is providing transport services to their employees. We also observe that the applicant, in his application, has informed that apart from subsidized amount collected from the employees, they are also adding up a considerable amount into it and then paying it to the third party vendor. The applicant is not retaining any amount collected from the employees towards said transportation charges. We further observe that the applicant is in the business of software development and staff augmentation services and not in the business of providing transport service. Rather, this is a facility provided to their employees under the obligation of Law of the Land. Moreover, this activity is not integrally connected to the functioning of their business. Also, the said activity is not a factor which will take their business activity forward.
Thus, providing transport facility to its employees cannot said to be in furtherance of business.
Thus, arranging the transport facility for the employees and recovery from employees towards such transport facility, under the terms of the employment contract, cannot be considered as supply of service in the course of furtherance of business. Providing transport facility to employees is no where connected with the business of the applicant - thus, we are in unison with the applicant that arranging the transport facility for the employees is definitely not an activity which is incidental or ancillary to the activity of software development, nor can it be called an activity done in the course of or in furtherance of development of software as it is not integrally connected to the business in such a way that without this the business will not function.
Further, coming to the subsequent questions, it is observed that the subsequent questions in the application apply only when the answer of first question is in affirmative. As we are of the view that arranging transport facility to its employee is not a supply of service, accordingly the remaining questions become redundant and merit no discussion.
-
2021 (3) TMI 706
Activity in relation to function entrusted to Panchayat or Municipality under Article 243G or Article 243W respectively, of the Constitution of India or not - Project Development Service (i.e. Detailed Project Report Service) and Project Management Consultancy services (PMCS) provided by the applicant to recipient under the Contract for SUDA - Project Management Consultancy services (PMC) under the contract for PMAY - pure services or not - exemption as provided in serial number 3 of Notification No. 12/2017- Central Tax (Rate) dated 28 June, 2017, as amended (S. No. 3A) by Notification No. 2/2018- Central Tax (Rate) dated 25 January, 2018 - HELD THAT:- The Consultancy services rendered by the applicant under the contract with State Urban Development Agency, Uttar Pradesh (SUDA), and for PMAY are in relation to functions entrusted to Municipalities under Article 243W and to Panchayats under Article 243G of the Constitution of India.
Pure services or not - exemption as provided in serial number 3 of Notification No. 12/2017- Central Tax (Rate) dated 28 June, 2017, as amended (S. No. 3A) by Notification No. 2/2018- Central Tax (Rate) dated 25 January, 2018 - HELD THAT:- The services mentioned in the contract would qualify as Pure Service (excluding works contract service or other composite supplies involving supply of any goods)” as provided in serial number 3 of Notification No. 12/2017- Central Tax (Rate) dated 28 June, 2017, as amended (S. No. 3A) by Notification No. 2/2018- Central Tax (Rate) dated 25 January, 2018 issued under Central Goods and Services Tax Act, 2017 (CGST) and corresponding Notifications No.- KA.N.I.-2-843/X1- 9 (47) / 17-UP. Act-1 - 2017 - Order - (10) – 2017 Lucknow, dated June 30, 2017 issued under Uttar Pradesh Goods and Service Tax Act, 2017 (UPGST Act), where the Project cost includes the cost of service rendered along with reimbursement of cost of procurement of goods for rendering such service, and, thus, be eligible for exemption from levy of CGST and UPGST, respectively.
-
2021 (3) TMI 705
Activity in relation to function entrusted to Panchayat or Municipality under Article 243G or Article 243W respectively, of the Constitution of India or not - Project Development Service (i.e. Detailed Project Report Service) and Project Management Consultancy services (PMCS) provided by the applicant to recipient under the Contract for SUDA - Project Management Consultancy services (PMC) under the contract for PMAY - pure services or not - exemption as provided in serial number 3 of Notification No. 12/2017- Central Tax (Rate) dated 28 June, 2017, as amended (S. No. 3A) by Notification No. 2/2018- Central Tax (Rate) dated 25 January, 2018 - HELD THAT:- The Consultancy services rendered by the applicant under the contract with State Urban Development Agency, Uttar Pradesh (SUDA), and for PMAY are in relation to functions entrusted to Municipalities under Article 243W and to Panchayats under Article 243G of the Constitution of India.
Pure services or not - exemption as provided in serial number 3 of Notification No. 12/2017- Central Tax (Rate) dated 28 June, 2017, as amended (S. No. 3A) by Notification No. 2/2018- Central Tax (Rate) dated 25 January, 2018 - HELD THAT:- The services mentioned in the contract would qualify as Pure Service (excluding works contract service or other composite supplies involving supply of any goods)” as provided in serial number 3 of Notification No. 12/2017- Central Tax (Rate) dated 28 June, 2017, as amended (S. No. 3A) by Notification No. 2/2018- Central Tax (Rate) dated 25 January, 2018 issued under Central Goods and Services Tax Act, 2017 (CGST) and corresponding Notifications No.- KA.N.I.-2-843/X1- 9 (47) / 17-UP. Act-1 - 2017 - Order - (10) – 2017 Lucknow, dated June 30, 2017 issued under Uttar Pradesh Goods and Service Tax Act, 2017 (UPGST Act), where the Project cost includes the cost of service rendered along with reimbursement of cost of procurement of goods for rendering such service, and, thus, be eligible for exemption from levy of CGST and UPGST, respectively.
-
2021 (3) TMI 704
Benefit of exemption from GST - Services provided under vocational training courses recognized by National Council for Vocational Training (NCVT) or Jaan Shikshan Sansthan (JSS) - Educational institution or not - To be exempt either under Entry No. 64 of exemption list of Goods and Service Tax Act, 2017 or under Educational Institution defined under Notification No. 22/ Central Tax (Rate)? - HELD THAT:- The applicant society is registered with the Income Tax department under Section 12A of the Income Tax Act. It is a Non-Governmental organization working for the people affected by leprosy, with the Government of India, State Governments, World Health Organisation etc. The applicant have many leprosy referral hospitals, Vocational Training Institute, Media Centre, Molecular Biology Research Laboratory, Mercy homes etc. spread over 9 states.
Entry No. 64 of Notification No. 12/2017 CT (Rate) dated 28.06.2017 deals with “Services provided by the Central Government, State Government, Union territory or local authority”. The applicant does not fall under these categories, therefore, the said entry is not applicable to them,
Educational institution or not - HELD THAT:- Diesel Mechanic, Computer Operator and programming Assistance (COPA), Welder and Cutting sewing trades are affiliated by National Council for Vocational Training under the Ministry of Skill Development and Entrepreneurship. Accordingly, we observe that these courses fall under the definition of “approved vocational education courses” - As regard to the “Informal Trades” as mentioned in the Annexure I of the application filed by the applicant, it is observed that as these courses are not approved by the National Council of Vocational Training/ State Council for Vocation Training, so they are not eligible to qualify as “approved vocational education courses”.
Thus, only the course affiliated by the National Council for Vocational Training are exempt from payment of GST under Sr. No. 66 of the Notification No. 12/2017-Central Tax (Rate) dated 28.06.2017.
-
2021 (3) TMI 643
Classification of services - Leasing - Royalty - exploration of natural resources - service provided by the Government of Uttar Pradesh to M/s. Ajay Kumar Singh in accordance with the Notification No. 11/2017-CT (Rate) dated 28.06.2017 read with annexure thereof - to be classified under Chapter number 9973 as “Licensing services for the right to use minerals including its exploration and evolution” or any other service under the said chapter or not - rate of GST
HELD THAT:- The Government provides license to various companies for exploration of natural resources. For this, the licensee company is required to pay the consideration to the Government in the form of annual licensing fee, lease charge, royalty, dead rent etc. In the State of Uttar Pradesh the mining lease is governed by the U.P. Minor Minerals (Concession) Rules, 1963. Rule 13 of the said Rules deals with “Security Deposit”, Rule 21 deals “Royalty” and Rule 22 deals “Dead Rent”. This activity of payment of lease charge/ dead rent/ royalty is towards the supply of service i.e. Licensing service for the right to use minerals including exploration and evolution, wherein the Government of Uttar Pradesh is supplier and the applicant is recipient. The liability of payment of GST liability on the amount of royalty paid to the Government is on the Service recipient i.e. the applicant in the instant case, in terms of Sl. No. 5 of Notification No. 13/2017 -Central Tax (Rate) dated 28-06-2017.
Classification of service - HELD THAT:- The Applicant has been awarded with a lease of the area specified in the lease agreement and conferred the right to extract the minerals lying underneath for appropriation. The right so conferred is not limited to using the minerals over the lease period but rather to appropriate the minerals extracted during the lease period Of course, extraction of minerals and the Government, does not continue to enjoy title over the minerals extracted by the lessee. Rather the applicant enjoys the title over the minerals extracted from the lease hold area and accordingly appropriates the property in the minerals by way of sale or otherwise - the impugned service received by the Applicant from the State Government merits classification under the head “Licensing services for the right to use minerals including its exploration and evaluation” at Serial No. 257, Heading 9973, Group 99733.
Rate of GST on given services provided by the Government of Uttar Pradesh to applicant for which royalty is being paid - HELD THAT:- It may be appreciated that amendment of Entry SI No. 17 (viii) was approved merely to clarify the GST rate applicable to the right to use Intellectual Property and similar products other than IPR which are covered under Group 99733 - On a conjoint reading of the notification no. 27/2018-Central Tax (Rate) dated 31.12.2018, Minutes / Agenda / Proposal/ Discussion of the GST council, we are of the view that amendments have been carried out vide the aforesaid notification to clarify the legislative intent as well as to resolve the unintended interpretations. It is well settled that the legislative intent cannot be defeated by adopting interpretations which is clearly against such interpretations. In view of this, the service received by the applicant from State Government is liable to be taxed @ 18%.
-
2021 (3) TMI 578
Maintainability of application - application has not been filed in the prescribed format required as per the provisions of Section 97(1) of the CGST Act, 2017 read with Rule 104 of the CGST Rules, 2017 - HELD THAT:- On a combined reading of the provisions of the Section 97 and Rule 104 of both the aforementioned Acts and Rules, we find that the application for obtaining an Advance Ruling under sub-section(1) of Section 97 is to be submitted in FORM-GST ARA-01 and shall be accompanied by a fee of Ten thousand rupees (Five thousand rupees as per Rule 104 of the CGST Rules, 2017 + Five thousand rupees as per Rule 104 of the GGST Rules, 2017).
The applicant has neither filed the application in the prescribed format of GST-ARA-01 nor paid the required fees of ₹ 10,000/- as required as per the provisions of aforementioned Sections and Rules. Therefore, the instant application is liable for rejection under Section 98(2) of the CGST Act, 2017 for not filing the application in proper FORM GST-ARA-01 and not paying the total fees of ₹ 10,000/- i.e ₹ 5,000/- under each head CGST & GGST as required under the provisions of CGST Act and Rules and respective GGST Act & Rules.
Instant application filed by M/s. Wiptech Peripheral pvt.ltd., 101, Dwarkadish, Virani Chowk, Tagore Road, Rajkot-360002 is hereby rejected under Section 98(2) of the CGST/GGST Act, 2017 being non-maintainable.
-
2021 (3) TMI 577
Maintainability of Advance ruling application - application not filed in proper format - Levy of GST - Supply of services or not - amount collected as membership subscription and admission fees from members - levy of GST on transactions between the Applicant and its members, on account of Principles of mutuality - classification of goods - rate of tax - input tax credit on on Catering services for holding members meetings and various events - HELD THAT:- On a combined reading of the provisions of the Section 97 and Rule 104 of both the aforementioned Acts and Rules, we find that the application for obtaining an Advance Ruling under sub-section (1) of Section 97 is to be submitted in FORM-GST ARA-01 and shall be accompanied by a fee of Ten thousand rupees (Five thousand rupees as per Rule 104 of the CGST Rules, 2017 + Five thousand rupees as per Rule 104 of the GGST Rules, 2017).
Although the applicant has filed the application in the prescribed format of GST-ARA-01, they have not paid the required fees of ₹ 10,000/- as required under the provisions of aforementioned Sections and Rules. Therefore, the instant application is liable for rejection under Section 98(2) of the CGST Act, 2017 for not paying the total fees of ₹ 10,000/- i.e. ₹ 5,000/- under each head CGST & GGST as required under the provisions of CGST Act and Rules and respective GGST Act & Rules.
Instant application filed by M/s. The maharaja Pratapsinh Coronation Gymkhana (Trade Name : Polo Club), Vadodara is hereby rejected under Section 98(2) of the CGST/GGST Act, 2017 being non-maintainable.
............
|
