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TMI Blog2021 (11) TMI 399X X X X Extracts X X X X X X X X Extracts X X X X ..... hether the applicant is eligible to claim the ITC on input and inputs services for repairs, renovations & rehabilitation works carried out by the Applicant? At the outset, we would like to make it clear that the provisions of both the CGST Act and the MGST Act are the same except for certain provisions. Therefore, unless a mention is specifically made to any dissimilar provisions, a reference to the CGST Act would also mean a reference to the same provision under the MGST Act. Further to the earlier, henceforth for the purposes of this Advance Ruling, the expression 'GST Act' would mean CGST Act and MGST Act. 2. FACTS AND CONTENTION - AS PER THE APPLICANT FACTS: 2.1 The Applicant, M/s Mahavir Nagar Shiv Srushti Co-operative Housing Society Limited, is a co-operative housing society registered under the Maharashtra State Co-operative Societies Act, 1960 and has constructed a building on the plot allotted by MHADA. The Applicant Society is formed, by its members who are the shareholders of the society, with the object of managing, maintaining and administering the property of the society. 2.2 For purpose of achieving the above objects of the society, the Applicant raises ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or both for a consideration in the furtherance or course of business will qualify as "supply" liable for GST. Thus, the supply is an inclusive definition encompassing all kinds of supply, however only those transactions which are for a consideration and in the furtherance or course of business will qualify as supply. 2.8 It is therefore pertinent to note the definition of "business" under Section 2(17) of the CGST Act, 2017. Clause (e) of Section 2 (17) specifically provides that business shall include provision by a club, association, society, or any such body (for a subscription or any other consideration) of the facilities or benefits to its members. Though the above definition of the business includes the provision of facilities or benefits to its members, on a case to case basis it has to be determined whether any facilities or benefits have indeed been provided by the society to its members. 2.9 In the present case the Applicant Society does not provide any facilities or benefits to its members. It is merely formed for managing the housing society. Thus, the applicant society cannot be considered to be doing any business. Further, the said definition of 'business' a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... movable property and thus, it may come under the definition of "Works Contract" and hence treated as works contract service. However, the Applicant Society shall be entitled to ITC in view of the Section 16(1). The denial of ITC can be only if there is blockage of credit under Section 17. In the present case there will be no blockage of credit of the reasons explained hereinbelow. From a reading of the provisions of Section 17 (5) (c) and (d) it is clear that no ITC shall be available of works contract service unless it is used for providing output works contract service. Further, the restriction does not apply to plant and machinery. In the present case, when it receives the works contract service of repairs, renovations and rehabilitation, the Applicant is further providing the said works contract services of repairs, renovations and rehabilitations to its members which is deemed to be supply. Thus, the Applicant Society shall be eligible to claim the ITC on the input works contract services as the same is used for providing the output works contract service. 2.13 The Applicant submits that it has used the works contract services provided by the contractor to provide further wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was present. The Jurisdictional officer was absent. Question No. 1 & 2 are withdrawn by the Applicant. The Applicant argued only the Question No 3. The Applicant to file the missing Annexure 3 of the ARA application which remained to be filed. The Applicant informed during the course of hearing that the question 3 is mainly for ITC on capital expenditure or major expenditure incurred by the society i.e. whether applicant is entitled to such ITC. 4.2 Heard the matter. 05. DISCUSSIONS AND FINDINGS: 5.1 We have gone through the facts of the case, documents on record and both, oral and written submission of the applicant. During the course of the final online hearing held on 29.10.2021, the applicant, through the authorized representative Shri. Rahul Thakkar, Advocate, withdrew Question Numbers 1 and 2. Hence we are required to answer only question no. 3 raised by the applicant. 5.2 Question No. 3 is: "if the activities of the applicant are treated as "supply" under CGST Act, 2017 then whether the applicant is eligible to claim the ITC on input and inputs services for repairs, renovations & rehabilitation works carried out by the Applicant". 5.3 The Applicant, M/s Mahavir Nagar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on his own account including when such goods or services or both are used in the course or furtherance of business. Explanation: For the purposes of clauses (c) and (d), the expression "construction" includes re-construction, renovation, additions or alterations or repairs, to the extent of capitalisation, to the said immovable property;" 5.7 Applicant has submitted that they shall be entitled to ITC in view of the Section 16 (1). The denial of ITC can be only if there is blockage of credit under Section 17. In the present case when the applicant receives the works contract service of repairs, renovations and rehabilitation, the Applicant is further providing the said works contract services of repairs, renovations and rehabilitations to its members which is deemed to be supply. Thus, the Applicant Society shall be eligible to claim the ITC on the input works contract services as the same is used for providing the output works contract service. Thus, the Applicant submits that it has used the works contract services provided by the contractor to provide further works contract service since it is the main contractor as far as the members is concerned and the contractor is the su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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