TMI Blog2022 (4) TMI 1135X X X X Extracts X X X X X X X X Extracts X X X X ..... rnment, Union Territory, a local authority, Governmental Authority or Government Entity (c) If the services provided to Government Entity, then the services must have been procured by the Government entity in relation to a work entrusted to it by the Central Government, State Government, Union territory or local authority. As per the first pre-requisite, IIT Bhubaneswar is an autonomous public institution of higher education and governed by the Institutes of Technology Act, 1961; therefore, the said construction for IIT. Bhubaneswar cannot said to be used for commerce, industry, or any other business or profession. Hence, 1st pre-requisite for the supply to qualify for the notified concession is satisfied/ful-filled - as regard the second pre-requisite it is held that IIT, Bhubaneswar is entitled to be termed as 'Government Entity' in terms of Explanation to Notification No. 11/2017-C.T. (Rate), and also as per Notification No. 31/2017-C.T. (Rate), dated 13-10-2017 as it fulfills the necessary and sufficient conditions laid down under notification supra. It therefore leaves no doubt that IIT, Bhubaneswar is a Government Entity for the purpose of provisions of CGST ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 read with clause (vi) of Sr. No. 3 (classification code 9954) of the table in the Notification No. 11/2017-Central Tax (Rate) dated 28th June 2017, And for the matter, the applicable rate of tax is 12% (including State GST Rate). (b) Or otherwise if the works contract service is not covered under clause (ix) of the entry 3 of the aforesaid notification, in the facts and circumstances of the appellant company, then what will be applicable clause under entry No. 3 and what will be the rate of GST. (c) If the ruling of Question 1 is affirmative, from which date, the 12% rate of tax will be applicable i.e. from date when said notification became effective or the date of order of Advance ruling. (d) Where the ruling of Question 3 provides the effective date as the date of notification, whether the applicant is required to revise the invoices already issued to NBCC (India) limited and required to make amendments in GST returns already filed. 1.1 At the outset, we would like to make it clear that the provisions of both the CGST Act and the OGST Act are the same except for certain provisions. Therefore, unless a mention is specifically made to such dissimilar provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Notification came into effect and not from the date of order of the advance ruling. 2.7 That the ruling done by the Advance ruling is also clarificatory in nature wherein the Authority for advance ruling has only interpreted the law and based on such interpretation and nature of transaction of assessee, the AAR has ruled the judgment. Such ruling passed by AAR can never be construed as amendment in law but gives the applicability of existing law on that particular assessee and therefore, such ruling shall be applied retrospectively from the date when the Law/provision or relevant notification has come into force and not from the date of ruling. 2.8 That as far as revision of bill is concerned, the applicant states that the Government department has under no right to retain any amount in the name of tax which was actually not payable as tax. Therefore, if the rate of tax in the present case will be decided to be 12%, then the invoices already issued to NBCC (India) Limited will be required to be revised to charge the correct tax amount and accordingly, NBCC (India) Limited will be required to reverse the Input Tax Credit, already claimed earlier. 3.0 The personal hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the applicability of concessional rate of tax in terms of Notification No. 11/2017-Central Tax (Rate), dated 28-6-2017. We, therefore observe that most of the issues before us are squarely covered under Section 97(2) of the CGST Act, 2017 and therefore we admit the application for consideration. 4.1 It has been contended by the applicant, through the written submission that the impugned supply is construction of efficiency hostel, extension of school of basic science, extension of mechanical science extension of school of infrastructure of IIT at Argul Campus Bhubaneswar, Odisha Construction of New infrastructure 2nd phase of IIT Bhubaneswar in permanent at Argul, Khurda, Odisha which is being supplied to a Government Entity i.e. IIT, Bhubaneswar and accordingly the same would merit entitlement for concessional rate of GST @ 12% [CGST @ 6% + SGST @ 6%] in terms of Notification No. 11/2017-Central Tax (Rate), dated 28-6-2017 (as amended). 4.2 In their submission, the applicant contended that their supply would merit classification under serial no. 3(vi) (b) of Notification No. 11/2017-Central Tax (Rate) dated 28.06.2017, as amended from time to time. For deciding the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Applicant has been awarded the work for Construction of efficiency hostel, extension of school of basic science, extension of mechanical science extension of school of infrastructure of IIT at Argul Campus Bhubaneswar, Odisha Construction of New infrastructure 2nd phase of IIT Bhubaneswar in permanent at Argul, Khurda, Odisha (herein after referred to as the Project ). It was also stated that M/s NBCC (India) Limited has awarded the contract for the Project in its letter of intent No. NBCC/CGM(CPG)/2018/1292 dated 04.12.2018, which has procured the work from IIT Bhubaneswar. The applicant submitted that it has undertaken the Project of Indian Institute of Technology, which is admittedly an educational institution and which is a Government entity [as ruled by AAR, Odisha in the case of M/s NBCC (India) Limited]. 4.5 We examined the documents submitted by the applicant and found that M/s NBCC (India) Ltd had invited e-tender No. NBCC/ CPG/ IIT/ BBSR/ ARGUL/ODISHA/2018/180 dated 04.11.2018 for the Project. Pursuant thereto, the applicant had participated in the above referred tender and M/s NBCC has accepted their tender and awarded the contract of the said Project in i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at services undertaken by them would fall under Serial No. 3(ix) of Notification No. 11/2017 as amended by Notification No.1/2018, which provides 12% GST on sub-contractor providing services specified in item (vi) to a Government Entity. We would like to mention here that M/s NBCC is the main contractor and the applicant is a sub-contractor who is providing services to M/s NBCC. Further, as per the applicant, ultimate service beneficiary is IIT. Bhubaneswar a Government Entity and the services are provided towards the construction of education establishment. As per entry (ix) of column no.3 of the said notification, if supply of works contract provided by a sub contractor to the main contractor providing services specified in item (iii) or item (vi) of the above notification to a Government Entity then sub-contractor would be liable to pay GST. @12%. Now let us examine as to whether IIT, Bhubaneswar is a Government Entity in terms of explanation 4(x) to the aforesaid notification. As per Explanation 4(x), Government Entity means an authority or a board or any other body including a society, trust, corporation, i) Set up by an Act of Parliament or State Legislature; or ii ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entral Government, we turn to the provisions of the Institutes of Technology Act, 1961 where the Act enshrines the duties and functions entrusted to every ITT. Relevant clauses of section 6 of the Act which read as follows; 6. (1) Subject to the provisions of this Act, every Institute shall exercise the following powers and perform the following duties, namely .. (e) to establish, maintain and manage halls and hostels for the residence of students; (f) to supervise and control the residence and regulate the discipline of students of the Institute and to make arrangements for promoting their health, general welfare and cultural and corporate life (j) to deal with any property belonging to or vested in the Institute in such manner as the Institute may deem fit for advancing the objects of the Institute.. (n) to do all such things as may be necessary, incidental or conducive to the attainment of all or any of the objects of the Institute. 4.11 On reading of such kinds of duties and works that IIT is entrusted with and then focusing on scope of works and other clauses of the agreement there remains no doubt that the service of construction of building/st ..... X X X X Extracts X X X X X X X X Extracts X X X X
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