TMI Blog2021 (11) TMI 884X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore in the very nature of taxation statute the interpretation cannot be absolutely cast upon the logic. The purpose of introducing exceptions in Sec 17 of the CGST Act, 2017 is to distinguish it from other transactions. Wherever the legislature has considered it appropriated to ensure consistency in the working of various provisions and to avoid repugnancy and ambiguity in such places they have clearly enacted such exclusions. Where such clarity of excluding a particular transaction is not clearly mentioned it cannot be inferred by logic. The interpretation of Sec 17(5)(c) wherein works contract services are excluded from claiming ITC will include all activities enumerated under Sec 2(119). And this definition does not exclude any species of works contract relatable to any immovable property where transfer of property in goods is involved. Thus the applicant who is purchasing building under an agreement of sale is not eligible to claim ITC under Sec 17 of the CGST Act, 2017. - A.R. Com/21/2020 TSAAR Order No.21/2021 - - - Dated:- 30-9-2021 - SRI B. RAGHU KIRAN, IRS, AND SRI S.V. KASI VISWESHWAR RAO, MEMBER [ORDER UNDER SECTION 98(4) OF THE CENTRAL GOODS AND SERVIC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the supply of lease of immovable property is specifically defined as a separate and distinct service under clause 2(b) of Schedule II of CGST Act, can the same be treated to be referring to either the supplies or transactions described in 17(5)(c) or 17(5)(d) of CGST? 3. Given that the Applicant is in the business of lease of immovable property, does the term works contract services when supplied for in s.17(5)(c) of CGST Act refer to output supply of lease of immovable property or to the input receipt (purchase of under construction commercial immovable property) of the Applicant? 4. Is supply of under construction commercial immovable property under an indivisible contract without explicit purchase of goods and/or services therein, a contract of works contract within the meaning of s.17(5)(c) of CGST Act? 5. Does the term Goods or Services or both received in s.17(5)(d) of CGST Act refer to output supply (lease of immovable property) or to the input receipt (purchase of under construction commercial immovable property) of the taxable person (Applicant)? 6. Does the term for construction of an immovable property on his own account in s.17(5)(d) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property? This being the case Consequent upon receipt of the application filed by M/s. Satya Dev Bommireddy, the jurisdictional officer i.e. Assistant Commissioner (State Tax) Basheerbag-Nampally, was requested vide this office letter CCT s Ref no.A.R.Com/21/2020 dated: 15.12.2020 inform, whether the questions raised in the application is already pending or decided in any proceedings in the case of the applicant and inform any issue pending before with them within a week lest it would be construed that these issues are not pending before them and the application would be processed under any of the provisions of the GST Act, 2017 and also requested to offer his/he comments on the points raised in the application, However case was admitted even though Officer have not replied by the grounds of the draft letter, Therefore, Personnel hearing given to the applicant. 6. Personal Hearing: The Authorized representatives of the unit namely Sri P.S.S Kailashnath, Advocate AR attended the personal hearing held on 09-07-2021. The authorized representatives reiterated their averments in the application submitted and contended as follows: That they are recipients of services un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... truction of a complex or a building or any civil structure intended for sale as service. GST is leviable on this service. There is another specific entry for composite supply in the same schedule at Para 6 which includes works contract as defined under clause (119) of Sec 2 of the CGST Act, 2017. Clause (119) of Sec 2 of the CGST Act, 2017 defines works contract as follows: Works contract means a contract for building, construction, fabrication, completion, erection, installation, fitting out, improvement, modification, repair, maintenance, renovation, alteration or commissioning of any immovable property wherein transfer of property in goods (whether as goods or in some other form) is involved in execution of such contract. The constitution bench of Hon ble Supreme Court of India in Punjab land development corporation limited Vs presiding officer labour court (1990) 3 SCC 682 has declared that definition should be taken to ascertain the meaning assigned to a word in the Act unless there was something repugnant to the subject or context. Thus though the construction of a building is covered by the definition of works contract still there are (2) separate entries ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x credit (ITC) for all the supplies received by tax payer. This section stipulates conditions under which ITC can be claimed and also carves out certain exceptions relating to certain goods services. The enacting part of this special provision operates in the assigned field without any ambiguity or clash. There is nothing in this section to indicate or suggest that the prohibition from taking ITC is not applicable to a particular species of works contract. It is a settled principle of interpretation that while interpreting the provision of taxing statute, a construction which would preserve the purpose of provision should be adopted. Therefore in the very nature of taxation statute the interpretation cannot be absolutely cast upon the logic. The purpose of introducing exceptions in Sec 17 of the CGST Act, 2017 is to distinguish it from other transactions. Wherever the legislature has considered it appropriated to ensure consistency in the working of various provisions and to avoid repugnancy and ambiguity in such places they have clearly enacted such exclusions. Where such clarity of excluding a particular transaction is not clearly mentioned it cannot be inferred by logic. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es the term Goods or Services or both received in s.17(5)(d) of CGST Act refer to output supply (lease of immovable property) or to the input receipt (purchase of under construction commercial immovable property) of the taxable person (Applicant)? Sec 17(5)(d) of CGST Act, 2017 refers to inputs on which ITC is not available for any taxable person. 6. Does the term for construction of an immovable property on his own account in s.17(5)(d) of CGST Act refer to output supply (lease of immovable property) or to the input receipt (purchase of under construction commercial immovable property) of the taxable person (Applicant)? Sec 17(5)(d) of CGST Act, 2017 refers to inputs on which ITC is not available for any taxable person. 7. If the term Goods or Services or both received in s.17(5)(d) of CGST Act refer to input received, then can the meaning of the term for construction of an immovable property on his own account in s.17(5)(d) of CGST Act include the business of the Applicant herein, i.e. for the lease of immovable property? If the applicant utilizes goods or services or both for const ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
