TMI Blog2021 (9) TMI 1066X X X X Extracts X X X X X X X X Extracts X X X X ..... o it by the State Government viz. rapid development and proper regularization of water supply and sewerage services in the State of Maharashtra and therefore MJP is clearly covered under the definition of Government Entity as can be seen from the definition of a `Government Entity - the applicant is supplying pure services to a Government Entity and therefore as per the provisions of Notification No. 12/2017, the said services supplied by the applicant are exempted from GST. I f it is concluded from the above that the supplies made or proposed to be made by MDE to MJP qualifies for exemption then the consequent question is whether MDE requires to obtain registration under GST law? - HELD THAT:- The applicant would be liable to obtain GST registration only if it supplies taxable good or services or both, in view of Section 22(1) and in view of Section 23 (1) (a), no registration is required to be obtained by the applicant when it exclusively supplies goods or services or both that are not liable to tax or wholly exempt from tax under the CGST Act, 2017 or under the IGST Act, 2017. It is not mandated to take GST registration based on the contract with MJP, since the service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after referred as MJP) has appointed Mekorot Development Enterprise Ltd, the applicant (MDE) as a consultant for study, survey, drafting and formation of Water Supply Master Plan (WSMP) to address the water drought problem in the Marathwada region and assist the Government of Maharashtra (GOM) to make a comprehensive strategy to solve the Marathwada (Aurangabad division) Water Crisis permanently. 1.2. MDE is a fully owned subsidiary of Mekorot, the national water company of Israel which is fully owned by the Government of Israel. 1.3. MJP is a Government of Maharashtra undertaking established through The Maharashtra Jeevan Authority Act, 1976. MJP was constituted in 1977 under The Maharashtra Water Supply and Sewerage Board Act, 1976 (MWS SB Act), for rapid development and proper regulation of Water Supply and Sewerage service in the State of Maharashtra. The act was later changed to The Maharashtra Jeevan Authority Act, 1976. MJP being a GOM undertaking, the Maharashtra state government holds 100% controlling power in MJP. 2. Scope of service under the agreement between MDE and MJP 2.1. As agreed between both the parties (MJP and AIDE); MDE will prepare a Water Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Company Limited, which was 100% owned by the government of Madhya Pradesh, was classified as a Government entity within the ambit of GST law. 1.4 In view of the above, it can be concluded that MJP is nothing but a wholly owned and controlled organization of the Maharashtra State Government and hence, can be termed as a Government entity within the ambit of GST law. Hence, all services provided to MJP can be said to be provided to a Government entity and tax waiver benefits under GST law shall be available. QUESTION - 2: WHETHER THE WORK INTENDED TO BE CARRIED OUT BY MDE QUALIFIES FOR EXEMPTION AS PER NOTIFICATION 12/2017- C.T.(RATE) DATED 28.06.2017? Applicant s view: 2.1 Below is the extract of article 243 W (to the extent relevant) for quick reference: The functions entrusted to a municipality under the Twelfth Schedule to Article 243W of the Constitution are as under: (e) Water supply for domestic, industrial and commercial purposes 2.2 Reference can be made to para WSMP , scope of work and Appendix A - Terms of Reference to the agreement (Refer Annexure D ) 2.3 The relevant para is reproduced herein below for quick reference - WAT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution 2.9 As per (Entry 3) of Notification 12/2017 CGST read with Notification 02/2018 CGST, services provided to a government entity which are in line with the article 243 W or 243 G shall be entitled to NIL rate of GST. The extract of the notification is reproduced below for quick reference:- Sl.No. Chapter, Section, Heading, Group or service code (Tariff) Description of Services Rate(percent.) Condition 3 Chapter 99 Pure services (excluding works contract service or other composite supplies involving supply of any goods) provided to the Central Government, State Government or Union territory or local authority or a Governmental authority or a Government entity by way of any activity in relation to any function entrusted to a Pane hay at under article 243G of the Constitution or in relation to any function entrusted to a Municipality under article 243 W of the Constitution NIL NIL 2.10 As discussed in pares 1 2 above, the service receiver MJP, is a Government Entity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... function entrusted to a Municipality under article 243 W of the Constitution The water management service in marathwada area falls within ambit of article 243 W QUESTION - 3: IF IT IS CONCLUDED FROM THE ABOVE THAT THE SUPPLIES MADE OR PROPOSED TO BE MADE BY MDE TO MJP QUALIFIES FOR EXEMPTION THEN THE CONSEQUENT QUESTION IS WHETHER MDE REQUIRES TO OBTAIN REGISTRATION UNDER GST LAW? 3.1 As concluded above, service provided by MDE to MJP is exempt from GST tax levy vide Notification 12/2017. As per Section 23 (1) (a) of the CGST Act, 2017, if an entity is providing fully exempt service, than the entity need not take registration under GST law. Section 23 (1) (a) is replicated below: 23. (1) The following persons shall not be liable to registration, namely:- (a) any person engaged exclusively in the business of supplying goods or services or both that are not liable to tax or wholly exempt from tax under this Act or under the Integrated Goods and Services Tax Act; (b) an agriculturist, to the extent of supply of produce out of cultivation of land . 3.2 MDE may not be mandated to take GST registration based on the contract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble Water Supply Master Plan (WSMP) and short term relief measures and create a Preliminary Design Report (PDR) based on the options selected by MJP from the WSMP. 5.5 As per the agreement, the Water Supply Master Plan (WSMP) is a long-term and comprehensive planning, for supply of water to certain region, which consists of investigation of the available water potential of all types of water and describes all works required in next 20-30 years for each consumption sector (domestic, industry and agriculture). Further, alternative development sequences may be identified to provide target service coverage and standards at affordable cost and designs and estimates are prepared approximately and finally, parameters are finalized so that advance actions could be taken. The master plan would also be updated periodically, or when the key attributes of the region/area changed significantly. 5.6 In view of the submissions made by the applicant we take up the second question for discussion, i.e. whether the work intended to be carried out by the applicant qualifies for exemption as per Notification No. 12/2017-C.T.(Rate) dated 28.06.2017. 5.6.1 The relevant Entry No. 3 of Exemption N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rly cannot be considered as a Central Government, State Government or Union territory or local authority. Thus we need to find whether MJP can be considered as a Governmental authority or a Government Entity. 5.6.7 With respect to the above question we need to have a look at Notification No. 31/2017 Central Tax (Rate) dated 13 th October, 2017. The relevant provisions pertaining to the present case are 31/2017 Central Tax (Rate) dated 13111 October, 2017 which are mentioned in Notification No. reproduced as under:- Notification No. 31/2017-Central Tax (Rate) dated the 13 th October, 2017 G.S.R (E).- In exercise of the powers conferred by sub-section (1) of section 9, sub-section (1) of section 11,sub-section (5) of section 15 and sub-section (1) of section 16 of the Central Goods and Services Tax Act, 2017 (12 of 2017), the Central Government, on the recommendations of the Council, and on being satisfied that it is necessary in the public interest so to do, hereby makes the following further amendments in the notification of the Government of India, in the Ministry of Finance (Department of Revenue) No.11/2017- Central Tax (Rate), dated the 281hJune, 2017, publi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity or a hoard or any other body including a society, trust, corporation, i) set up by an Act of Parliament or State Legislature; or ii) established by any Government, with 90 per cent. or more participation by way of equity or control, to carry out a function entrusted by the Central Government, State Government, Union Territory or a local authority. 5.6.9 Maharashtra Water Supply and Sewerage Board (MWSSB) was established as per MWSSB Act 1976 for Rapid development and proper regularization of water supply and sewerage services in the State of Maharashtra, by the Government of Maharashtra. MWSSB was subsequently named as Maharashtra Jeevan Pradhikaran in 1997. The Principal responsibilities of Maharashtra Jeevan Pradhikaran according to MWSSB Act 1976 are : Planning, designing and implementation of water supply and sewerage schemes including facilitation for necessary financial provisions, as directed by the Government of Maharashtra (Government of Maharashtra); taking over any water supply as well as sewerage scheme for operation and maintenance; to establish service level bench marks for water supply and sewerage sector; to extend relevant support, regarding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity mentioned at 5.6.8 above. 5.6.12 In view of the above discussions, we are of the opinion that the applicant is supplying pure services to a Government Entity and therefore as per the provisions of Notification No. 12/2017, mentioned above, the said services supplied by the applicant are exempted from GST. 5.7 Now we proceed to the third question raised by the applicant which is as under:- Question 3:- If it is concluded from the above that the supplies made or proposed to be made by MDE to MJP qualifies for exemption then the consequent question is whether MDE requires to obtain registration under GST law? 5.7.1 As per Section 22 (1) of the CGST Act, 2017, every supplier shall be liable to be registered under this Act in the State or Union Territory, other than special category States, from where he makes a taxable supply of goods or services or both. if his aggregate turnover in a financial year exceeds twenty lakh rupees. Provided that where such person makes taxable supplies of goods or services or both from any of the special category States, he shall be liable to be registered if his aggregate turnover in a financial year exceeds ten lakh rupees. 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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