TMI Blog2019 (10) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... other two categories are clearly defined. Abatement to the extent of 1/3 rd of the total amount charged for supply of the service mentioned under Sl. No. 3(i) of the Rate Notification has been allowed under para 2 of the said Notification. No abatement has been provided for service mentioned under Sl. No. 3(iii) of the said Table. Thus, no abatement prescribed for construction service under Sl.No. 3(i) read with paragraph 2 of notification No. 11/2017-CT (Rate) dated 28-06-2017 (corresponding State Notification No. 1135-FT dated 28/06/2017) as amended form time to time is applicable on the value of Preferential Location Service realised separately from the buyers. Decision as above in respect of PLS will also hold for right to use car parking space. Appeal disposed off. - Appeal Case No. 09/WBAAAR/APPEAL/2019 - - - Dated:- 25-9-2019 - MR. A.P.S SURI, AND MS. SMARAKI MAHAPATRA, MEMBER Present for the Appellant: Sri Samir Kumar Jana, Assistant Commissioner, State Tax, Park Street Charge, Kolkata. Present for the Respondent: Dr. Samir Chakraborty, Senior Advocate And Mr. Arnab Chakraborty, Advocate An Appeal filed under Section 100(1) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certain other services that he will enjoy in addition to the construction service, and to pay a single consolidated amount for all these supplies. While examining whether these services are naturally bundled and are supplied in conjunction with one another in the ordinary course of business and whether the construction supply is the dominant element and all other services in the bundle are ancillary or incidental to the supply of the construction service, the WBAAR has observed that the term naturally bundled is not defined in the GST Act and has relied on Section 9.2.1 of the Education Guide that CBEC published in 2012 in this regard, which says that in contrast to other combinations, the services that are naturally bundled can be treated as provisioning of a single service that lends the bundle its essential character. The WBAAR has further relied upon Section 9.2.4 of the Education Guide ibid which says that whether the services so bundled are provided in conjunction with one another in the ordinary course of business would depend upon the normal or frequent practices adopted in a business and can be ascertained from indicators like whether a large number of service receiver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 12.09.2019 itself. The respondent raised no objection in the matter. 7. During the course of hearing the Appellant reiterated the points as stated in the Grounds of Appeal. He also reiterated his reliance on the observations of the Hon ble Delhi High Court in the case of Suresh Kumar Bansal vs. Union of India reported in 2016 (43) S.T.R. 3 (Del.) = 2016 (6) TMI 192 - DELHI HIGH COURT that preferential location charges cannot be traced directly to the value of any goods or value of land but are as a result of the development of the complex as a whole and the position of a particular unit in context with that of the complex. 8. The Respondents contested the appeal against the Advance Ruling, wherein, they have inter alia, submitted that in the Agreement for Sale, composite price comprising all elements of price is mentioned as consideration. However, since the price elements have been separately specified in the General Terms and Conditions, BPHDCL has been discharging CGST and SGST aggregating 18% on the charges for floor rise and directional advantage without claiming any abatement in respect thereof, as applicable for supply of construction service. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Suresh Kumar Bansal vs. Union of India reported in 2016 (43) S.T.R. 3 (Del.) = 2016 (6) TMI 192 - DELHI HIGH COURT is completely misplaced as the said decision pertains to the period prior to July 1, 2012, and has no manner of application to the changed statutory provisions under the Finance Act, 1994 effective July 1, 2012 and thereafter under the GST Act. 12. The matter is examined and written and oral submissions made before us are considered. As the application for Advance Ruling was only on the purpose of PLS, the discussion in the present proceedings will also be limited to that extent. 13. The WBAAR in its order accepted the claim of the builder that they are providing a composite supply, construction service being the main supply and the other ones are incidental or ancillary to the construction service. The WBAAR also concluded that the services provided are naturally bundled. Services are considered to be naturally bundled in the ordinary course of business when a large number of service receivers reasonably expect such services to be provided as a package. For example where goods are packed and transported with insurance, the supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erstwhile Service Tax regime has been imbibed in spirit into the present GST system, hence the same treatment should be applicable to PLS and there should be no abatement on the value of such PLS, which are realised separately from the buyers. 16. We also find that it has been submitted by the respondent in their submission that they have been paying CGST and SGST on the charges for floor rise and directional advantage without claiming any abatement in respect thereof. We have also perused sample invoices, wherein we find that they have raised separate invoices on account of Unit Sales , PLC Charges and Floor Rise Charges . It reinforces the conclusion in the preceding paragraph that PLS can in no way be associated with land. PLS comes into being as the builder charges the buyer separately for providing a better location, which may be in relation to the direction in which the flat is constructed, the floor on which it is located, the views from the particular flat opted by the buyer etc. Thus, the abatement, which is allowed on the value of construction service, as the plot of land on which construction is done is not liable to GST, cannot be deemed to be applicable i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in relation to such renting, for use in the course of or, for furtherance of business or commerce under Section 65(105)(zzzz) of the Finance Act, 1994, which is in no way akin to the issue involved in the instant case. Hence we find that the cited decision has no bearing on the this case. In view of above discussion, it is held that no abatement prescribed for construction service under Sl.No. 3(i) read with paragraph 2 of notification No. 11/2017-CT (Rate) dated 28-06-2017 (corresponding State Notification No. 1135-FT dated 28/06/2017) as amended form time to time is applicable on the value of Preferential Location Service realised separately from the buyers. It is noticed the BPHDCL had sought a ruling on whether the abatement prescribed for supply of construction service in terms of serial number 3(i) of Notification No. 11/2017-Central Tax (Rate) and corresponding State Notification No. 1135-FT dated 28/06/2017 read with Paragraph (2) appended thereto will also apply for supply of services of Floor Rise Directional Advantage being Composite Supply with principal supply of Construction. However, the WBAAR has passed Ruling in respect of right to use car park ..... X X X X Extracts X X X X X X X X Extracts X X X X
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