TMI Blog2018 (11) TMI 1347X X X X Extracts X X X X X X X X Extracts X X X X ..... ended by the Notification No. 32/2017-Centra1 Tax (Rate), dated 13.10.2017. Therefore, the applicant is not entitled for the benefits of the said notification and the activity of long term lease is liable for levy of GST. - GOA/GAAR/4 of 2018-19 - - - Dated:- 4-10-2018 - ASHOK V. RANE AND S.K. SINHA, MEMBER PROCEEDING (Under Section 98 of the Goa Goods and Services Tax, Act 2017) The present application has been filed under Section 97 of the Goa Goods and Services Tax Act, 2017 and the Central Goods and Services Tax, Act, 2017 (hereinafter referred to as the SGST Act and CGST Act) by M/s. Goa Tourism Development Corporation Ltd., 3rd Floor, Paryatan Bhavan, Patto, Panaji - Goa (hereinafter referred to as the applicant) seek ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the applicant, an undertaking of Government of Goa, for lease of 60 years granted to M/s. Myrayash Hotels Pvt. Ltd., Mumbai is exempted from payment of GST under Sr. No. 41 of Notification No. 12/2017-C.T. (Rate), 28-6-2017 as amended by Notification No. 32/2017-C.T. (Rate), dated 13-10-2017. The Entry No. 41 reads as follows : Upfront amount (called as premium, salami, cost, price, development charges or by any other name) payable in respect of service by way of granting of long term lease of thirty years, or more) of industrial plots for development of infrastructure for financial business, provided by the State Government Industrial Development Corporations or Undertakings or by any other entity having 50 percent or more ownership ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the description as Up-Front Concession Fees with respect to Anjuna Property. (ii) The period of lease is 60 years as mentioned in Clause No. 3.1.1 of the agreement with Goa Tourism Development Corporation Ltd. Therefore, the period of lease is more than 30 years as required under Entry No. 41 of the notification. (iii) The word industry has been defined in Black s Law Dictionary as follows : Black s Law Dictionary Industry - Any department or branch of art, occupation or business conducted as a means of livelihood or for profit, especially one which employs much labour and capital and is a distinct branch of trade. Thus, any activity which is meant for livelihood and employs labour and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of 30 years totalling 60 years for upfront concession fees of ₹ 25,20,00,000/-. 8. The upfront concession fee received against the lease made for more than 30 years is exempted from the payment of GST under the provisions of entry No. 41 of Notification No. 12/2017-Central Tax (Rate), date 28-6-2017 as mended by Notification No. 32/2017-Central Tax (Rate), dated 13-10-2017, only when all the conditions are met. From the provisions of entry No. 41 of said Notification following criterion may be derived for availing exemption from GST - (a) the service provider should be State Government Industrial Development Corporation or Undertakings or any other entity having 50 percent or more ownership of Central Government, State Governmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from state government is mandatory for treatment of any area as industrial or financial business area. 9. In the matter of case on hand we find that no such Notification declaring the area consisting of plot leased out by the applicant, as industrial/financial business area, is on record. Therefore, the area cannot be treated as industrial or financial business area. Therefore, the benefits of Notification No. 12/2017-Central Tax (Rate), dated 28-6-2017 as amended by Notification No. 32/2017-Central Tax (Rate), dated 13-10-2017 is not available to the applicant. 10. Recently, the Hon ble High Court Bombay has dealt with the identical issue in the matter of Writ Petition No. 12194 of 2017 [2018 (12) G.S.T.L. 232 (Bom.) in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 2017 which reads as - Save as otherwise provided in this Chapter, the goods or services or both supplied on or after the appointed day in pursuance of a contract entered into prior to the appointed day shall be liable to tax under the provisions of this Act . 13. From the statute of the provisions of Section 142(10) ibid it can be easily secreted that if the contract is made in Service Tax regime and the service is provided in the GST regime or the service is in the nature of continuous supply of service, the same shall be liable to tax under the GST Act. In the instant matter, though the consideration against service is received prior to the appointed day and the contract was made in service tax regime, it cannot be said that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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