TMI Blog2021 (2) TMI 995X X X X Extracts X X X X X X X X Extracts X X X X ..... uling whereby the Authority or the Appellate Authority may amend any order passed by it under section 98 or section 101, so as to rectify any error apparent on the face of the record, if such error is noticed by the Authority or the Appellate Authority on its own accord, or is brought to its notice by the concerned officer, the jurisdictional officer, the applicant or the appellant within a period of six months from the date of the order. It is clear that even in cases where a rectification of mistake application is admitted and a mistake apparent on record is corrected, the original order is not set aside. The original order remains on record and only the mistakes are corrected therein. The principle of doctrine of merger will not apply in such cases. Any appeal can be made only against the original order which will be read together with the correction made in the rectification order. In this case, the rectification application was not admitted as there was no error apparent on record and hence, the original order stands without any changes. The ROM rejection order does not merge with the original advance ruling order. The original advance ruling stands without any corrections. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question: Whether Applicant is liable for GST towards work executed under JDA on land owner's portion where work commenced during pre-GST and continued under GST law? If tax is applicable the valuation for payment of tax. 5. The AAR vide its order KAR ADRG No 17/2019 dated 25th July 2019 = 2019 (8) TMI 395 - AUTHORITY FOR ADVANCE RULING, KARNATAKA gave the following ruling: The Applicant is liable to pay GST towards work executed under Joint Development Agreement on Land owner 's portion, on the value to be arrived at in terms of para 2 of the Notification No 11/2017-Central Tax (Rate) dated 28-06-2017 at the time of transfer of possession of the land owner 's portion of the flats. 6. The Appellant filed an application dated 27-09-2019 for rectification of mistake (ROM) in the Advance Ruling order dated 25-07-2019 in terms of Section 102 of the CGST Act, 2017. In the ROM application, the Appellant stated that the ruling given by the Advance Ruling Authority in their case differed significantly with the ruling issued in the case of M /s Nforce Infrastructure India Pvt Ltd vide AAR Order KAR ADRG 30/2018 dated 28-11-2018 = 2018 (12) TMI 534 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n it is the date of receipt of payment. In this regard they submitted that in case of transactions between landlords and developer, usually there is no system of issue of invoices; that therefore, out of the above three events listed, the date of receipt of consideration or date of completion of service would be relevant in case of JDA; that as per Rule 3 of Taxation Rules, 2011, the point of taxation is the date on which the development rights are received by builder / developer, as the developer gets the possession of land. Therefore, in the case of JDA construction service provided by developer to land owner, the point of taxation arises on the date of entering into the JDA. They relied on the CESTAT decision dated 11-05-2018 in the case of Vasanth Green Projects - Appeal No: ST/31095/2017 = 2018 (5) TMI 889 - CESTAT HYDERABAD wherein it was held that whatever consideration was received by the appellant in the form of developmental right was considered as assessable value. 8.3. In view of the above they submitted that in case of JDA construction service provided or agreed to be provided by the developer to the land owner, the point of taxation arises on the date of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted that the applicant filed an application for rectification of the advance ruling alleging that the authority has given a ruling in the case of M/s Nforce Infrastructure India Pvt Ltd wherein on similar set of facts it was held that GST is payable only on the proportionate service supplied after 30-06-2017. Further the ROM application sought to rectify the ruling given with regard to valuation on the grounds that the provisions of Para 2 of Notf 11/2017 CT (R) cannot be made applicable to construction service provided to land owners under JDA since it does not involve transfer of undivided interest in land from developer to the land owner. However, the ROM application was rejected vide order KAR ROM 3/2020 dated 11.09.2020 and being aggrieved by that decision, the present appeal has been filed. 9.1. On a specific query by the Members regarding the admissibility of the instant appeal which is based on an order passed by the lower Authority in terms of Section 98(2) of the CGST Act and not under Section 98(4) of the said Act, the authorised representatives agreed to file additional written submissions within 2 weeks in this regard. 9.2. The Appellant furnished addition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the original order. 9.4. The Appellant further submitted that they had filed the rectification application on 27-09-2019 which was well within the time prescribed for filing appeal under Section 100 of the CGST Act; that the lower Authority took almost one year to complete the rectification proceedings and therefore the limitation for filing appeal commences from the date of receipt of rectification order. They also made a plea that since the lower Authority had made an observation in para 5.4 of the rectification order that the Appellant had not filed records to negate the findings that the possession of land owner's share of flats was not handed over to the land owner till 30-06-2017, the Appellant Authority may provide an opportunity to make fresh application/submissions before the lower Authority since there is a change in facts as against the facts based on which the advance ruling was rendered. DISCUSSIONS AND FINDINGS 10. We have gone through the records of the case and considered the submissions made by the Appellant in their grounds of appeal and at the time of personal hearing as well as the detailed submissions made in the additional written submissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as may be placed before it by the applicant or obtained by the Authority and after providing an opportunity of being heard to the applicant or his authorised representative as well as to the concerned officer or his authorised representative, pronounce its advance ruling on the question specified in the application. (5) Where the members of the Authority differ on any question on which the advance ruling is sought, they shall state the point or points on which they differ and make a reference to the Appellate Authority for hearing and decision on such question. (6) The Authority shall pronounce its advance ruling in writing within ninety days from the date of receipt of application. (7) A copy of the advance ruling pronounced by the Authority duly signed by the members and certified in such manner as may be prescribed shall be sent to the applicant, the concerned officer and the jurisdictional officer after such pronouncement. 13. An advance ruling pronounced by the Authority under Section 98(4) may be appealed against to the Appellate Authority within a period of 30 days from the date on which the ruling sought to be appealed against is communicated to the aggr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had considered all the submissions and facts and pronounced a ruling on all questions of the applicant and there was no error/mistake which was apparent on record. It is against this rejection of ROM vide order dated 11-09-2020 that this appeal has been filed before us. 15. A reading of the above provisions of law makes it clear that an appeal can be filed before the Appellate Authority only against an advance ruling pronounced in terms of Section 98 (4). In this case, the ruling pronounced in terms of Section 98(4) is the advance ruling order No. KAR ADRG 17/2019 dated 25-07-2019 = 2019 (8) TMI 395 - AUTHORITY FOR ADVANCE RULING, KARNATAKA . An appeal is maintainable only against the said order dated 25-07-2019 within the statutory period of 30 days from the date of communication of the said order. However, no appeal has been filed before us against the advance ruling dated 25-07-2019. The Appellant contends that they had filed for a rectification of mistake in the advance ruling dated 25-07-2019 and hence, when a matter is pending for rectification, the remedy for filing appeal accrues from the date of completion of such rectification proceedings. In this connection the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... even though the rectification application got rejected by the lower Authority the advance ruling order passed under Section 98(4) is admissible for appeal and the time limitation shall be calculated from the date of the rectification order and not from the date of the original order. We have gone through both the above referred decisions and find that the issues discussed therein relate to how the time limitation for filing the rectification of mistake application should be considered. This is not the issue in the instant appeal and hence the above referred decisions do not help the Appellant. The Appellant's argument seems to be that the order rejecting the ROM application merges with the original order and hence the appeal filed against the ROM rejection order dated 11-09-2020 is to be considered as an appeal against the original order dated 21-09-2020. This argument is not legally tenable. 17. The question whether there is any merger in a case where the authority has passed an original order and subsequently reconsidered the matter and passed another order, has been dealt extensively by the Hon'ble High Court of Karnataka in the case of Kothari Industrial Corporation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rected, the original order is not set aside. The original order remains on record and only the mistakes are corrected therein. The principle of doctrine of merger will not apply in such cases. Any appeal can be made only against the original order which will be read together with the correction made in the rectification order. In this case, the rectification application was not admitted as there was no error apparent on record and hence, the original order stands without any changes. The ROM rejection order does not merge with the original advance ruling order. The original advance ruling stands without any corrections. The appeal should have been filed by the Appellant against the advance ruling order dated 25-07-2019 within the period of 30 days from the date of communication of the said order or such extended period as permitted in terms of the proviso to Section 100(2) of the CGST Act. 19. We also observe that in the instant appeal, the Appellant is aggrieved by the fact that the lower Authority had given a different ruling in the application filed by M/s Nforce Infrastructure India Pvt Ltd when the subject matter and facts were the same as their case. Further, the issue wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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