TMI Blog2022 (5) TMI 450X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of registration which have been attached to the appeal at pages 23 to 27, we observe that the same are a bunch' of three documents, one of them being a letter dated 29.09.2021 from the appellant addressed to the AAR with reference to the personal hearing held on 27.09.2021 submitting that the subject work under the said contract is still continuing and the period of completion of the said work stands extended upto 16.10.2022. It is further observed that the another document attached to the appeal is an undated letter of extension of contractor agreement signed by M/s Sanwaliya Buildcreation LLP which states that the duration of the contract with M/s Shri Vinayak Buildcon which was for a period of 24 months from 01.04.2019 to 31.03.2021 will now remain upto October 2022 as the builder has got extension from RERA upto 16th October 2022 - the other documents relevant to the instant document have to be seen in order to ascertain the date of coming into existence of the instant document. The supply of services by the appellant to the builder in the instant case commenced from 01.04.2019. The agreement dated 13.12.2019, duly notarised and signed by both the builder and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... At the outset, we would like to make it clear that the provisions of both the Central GST Act, 2017 and the Rajasthan GST Act, 2017 are same except for certain provisions. Therefore, unless a mention is specifically made to such dissimilar provisions, a reference to the Central GST Act, 2017 would also mean a reference to the similar provisions under the Rajasthan GST Act, 2017. 2. The present appeal has been filed under Section 100 of the Central GST Act, 2017 ( hereinafter also referred to as 'the CGST Act' ) read with Section 100 of the Rajasthan GST Act, 2017( hereinafter also referred to as the `RGST Act' ) by M/s Shri Vinayak Buildcon, 7, E-Class, Pratap Nagar, Udaipur (Rajasthan) (hereinafter also referred to as the 'appellant') against the Advance Ruling pronounced by the Rajasthan Authority for Advance Ruling in GST vide Order No. RAJ/AAR/2021-22/24 dated 01.10.2021. The Appellant herein has submitted the instant appeal in this office in hard copy on 28.10.2021 after payment of fee amounting to Rs.10,000/- against CGST and Rs.10,000/- against SGST vide CIN SBIN21100800333322 dated 28.10.2021. BRIEF FACTS: 3. As narrated by the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f registration period of the project due to Force Majeure and accordingly, the Builder has granted extension of contract upto 16 th October 2022 to the appellant herein. It is their further submission that after getting extension from the builder, the appellant again started their work as per the agreement and the said work is still going on and the appellant is still providing services till the completion of work which is supposed to be completed by October, 2022. Application seeking Advance Ruling 6. It is stated by the appellant in the instant appeal that it was their understanding of the law that the services of labour work of construction of residential houses under Chief Minister's Awas Yojana 2015 framed to achieve the objective of Affordable Housing for All under Pradhan Mantri Awas Yojana of the Government of India is exempted from GST by virtue of SI. No. 10 of Notification No. 12/2017-CT(R) dated 28.06.2017 and accordingly, during the continuation of the work, the appellant moved an application seeking Advance Ruling from the Rajasthan Authority for Advance Ruling on the question which is reproduced below: Whether the services provided by the applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he services are being undertaken. (v) That the appellant has put the abovementioned query for advance ruling as the appellant considers that the services of labour work of construction of residential houses under Chief Minister's Awas Yojana-2015 framed to achieve the objective of Affordable Housing for All under Pradhan Mantri Awas Yojana of Government of India contracted to them by the builder is a supply of service as per Section 7 of the CGST Act, 2017 and is further leviable to GST under Section 9 of the CGST Act, 2017 but exemption provided under SI. No. 10 of Notification No. 12/2017-CT(R) dated 28.06.2017 is available to them as the services provided by the appellant in the present case under consideration is by way of pure labour contract of construction of new residential houses which are being constructed under aforesaid scheme. (vi) That in an identical case of M/s Sevak Ram Sahu of Jaipur, Advance Ruling reported at 2020 (33) G.S.T.L. 437 (AAR-GST-Raj.), the appellant was a sub-contractor supplying pure labour services for Chunai and Plaster work for construction of residential houses under affordable housing scheme under Pradhan Mantri Awas Yojana to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the submission of the appellant that they are engaged in supply of services on pure labour basis, involving no supply of goods, for construction of residential houses which are being built by a builder on a plot of land allotted to the builder for construction flats under the Affordable Housing Scheme of the Government of Rajasthan under Chief Minister's Awas Yojana 2015 framed to achieve the objective of Affordable Housing for All under Pradhan Mantri Awas Yojana of the Government of India. The application seeking advance ruling as filed by the appellant on 06.07.2021 with the AAR contained the question as to whether the services of construction as provided by the applicant by way of pure labour contract to the builder of flats under the said scheme of the Government were eligible for exemption in terms of entry SI. No. 10 of Notification No. 12/2017-Central Tax (Rate), dated 28-06-2017. 13.1. Before proceeding further to consider the prayer made by the appellant we consider it necessary to examine the reasoning given in the order passed by the AAR. We observe that the order dated 01.10.2021 passed by the AAR on the application dated 06.07.2021 filed by the appellant se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontaining definition of Advance Ruling which has also been considered by the AAR to come to a conclusion in the impugned order dated 01.10.2021 which is under challenge in these proceedings. We, therefore, deem it appropriate to reproduce the said provisions as follows:- [Section 95. Definitions of Advance Ruling:- In this Chapter, unless the context otherwise requires,- (a) advance ruling means a decision provided by the Authority or the Appellate Authority or the National Appellate Authority to an applicant on matters or on questions specified in sub-section (2) of section 97 or sub-section (1) of section 100 or of section 101C, in relation to the supply of goods or services or both being undertaken or proposed to be undertaken by the applicant;] 14.2. We observe that the definition of advance ruling, when seen in the context of the issue involved in the instant appeal, provides that questions seeking an advance ruling can relate to either supply of goods or supply of services or both by the applicant. In the instant case, the question concerns supply of services only by the applicant (appellant herein). However, as per the definition, the supply of goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te that any submission was made to the effect that the services are still being undertaken. (iv) The paper book of the appeal refers to the following documents which have been enclosed with the appeal:- (a) Copy of certificate for extension of registration at pages 23 to 27; (b) copy of extension letter at page 28; (v) Copy of application filed before the AAR has been enclosed to the appeal at pages 29 to 56 as mentioned in the paper book as well. 16. It will be at a little later stage that we will go into the question as to what constitutes 'supplies being undertaken'. For this purpose we will also have to examine as to whether currency of an agreement as on the date of filing application seeking advance ruling constitutes 'supplies being undertaken' as provided under Section 95 (a) ibid even if a large portion of the period of currency of the agreement has already elapsed. However, without going into these questions at this stage, we are examining the factual position with regard to currency of the period of the agreement in question which has been submitted to and taken into consideration by the AAR. 17.1. From perusal of the copies of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extension of registration of the project upto 16.10.2022 was granted by RERA vide extension certificate dated 03.09.2021 only it can be inferred that the letter in question as issued by the builder was signed not before 03.09.2021 as mention of extension upto 16.10.2022 could have been made only after issuance of the RERA's certificate dated 03.09.2021 only. However, the application seeking advance ruling in the instant case was filed on 06.07.2021 before the AAR, the date on which the extension letter was not in existence. We, therefore, come to the conclusion that the extension of contract agreement as claimed to have been given by the builder to the appellant was not in existence on the date of fling of the application seeking advance ruling in the matter. 17.4. In this regard we further observe that the appellant has claimed that the extension of contract agreement was brought to the notice of the AAR during personal hearing but the record of personal hearing dated 27.09.2021 does not find mention of such a fact despite the fact that the record is also signed by the Authorised Representative of the appellant. Further, the appellant has made no submissions in the appeal a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. Thus, we find that these documents were never a part of the application papers and by attaching these documents with the appeal papers and mentioning in the paper book that a copy of the application filed before the AAR is placed at pages 29 to 56 an attempt has been made to create an impression as if the extension certificates issued by the RERA and the extension of contract agreement as issued by the builder were and had always been a part and parcel of the application papers. However, from what has been concluded hereinabove we find that as per the records placed before us by the appellant these documents were definitely not part of the application filed before AAR and it is only while filing the appeal that the same have been shown as having been attached to the application filed before the AAR. 18. After having observed that the extension certificates issued by the RERA had not been submitted to the AAR with the application seeking advance ruling and the letter from the builder showing extension of contract agreement was not in existence at the time of filing application seeking advance ruling, we now proceed to decide the point as to whether the supply of services by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... while supply of services 'proposed to be undertaken' is clearly a matter of supply which will be undertaken in future and which, at present, is at proposal stage only, supply of services 'being undertaken' is a matter of supply in the present which has moved beyond the stage of proposal towards the execution stage. But in any case, the phrase 'being undertaken' does not cover in its ambit anything which has been completed or which has become the thing of the past as clause (a) does not use the word 'undertaken' singly. This is the only interpretation of the phrase 'being undertaken' that is commensurate with the intrinsic meaning of the word 'advance' in 'advance ruling' which simply denotes that an applicant can obtain a ruling in advance from the specified authority. 18.3. Adverting to the facts of the instant appeal, we observe that the supply of services by the appellant to the builder in the instant case commenced from 01.04.2019. The agreement dated 13.12.2019, duly notarised and signed by both the builder and the instant appellant being the supplier of service to the builder, specifically mentions that supply of serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an agreement before filing of an application seeking advance ruling on the question of applicability of exemption notification to the supply of services but in our view stretching the meaning of the phrase 'being undertaken' to such an extent where the point of filing the application seeking advance ruling would fall well beyond the entire period of the supply of services under the agreement would not only be against the spirit of advance ruling itself but also frustrate the very objective of seeking an advance ruling. 18.5. In view of the findings given above, the questions involving claim of extension of the two years contract agreement for supply of service for further period of one and a half years, creation of such an extension document at a stage far later than the date of filing application seeking advance ruling and non-existence of evidence showing submission of such an extension letter to the AAR lose their relevance and, therefore, the same need no further examination. 19. We, therefore, hold that the order dated 01.10.2021 passed by the AAR rejecting the application seeking advance ruling by holding that the subject application for advance ruling made by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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