TMI Blog2021 (11) TMI 1130X X X X Extracts X X X X X X X X Extracts X X X X ..... . no 8(vi) of Notification no. 11/2017-CT(Rate) dated 28.6.2017 as amended is concerned, the same is fully dependent on the condition of availment or otherwise of the Input tax credit by the applicant. The applicant would be eligible to input tax credit on the input services provided they fulfill the conditions as stipulated under section 16 read with section 17 of the CGST Act, 2017, whereas eligibility or otherwise of the tax rate as provided under sr. no. 8(vi) of Notification no. 11/2017-CT(Rate) dated 28.6.2007, as amended vide Notification No. 31/2017-C.T. (Rate), dated 18-10-2017 read with Explanation no. (iv) therein is subject to the pre-condition that Input tax credit of input tax charged on goods and services used in supplying the service, other than the input tax credit of input service in the same line of business (i.e. service procured from another service provider of transporting passengers in a motor vehicle or renting of a motor vehicle), has not been taken. - STC/AAR/07/2021 - - - Dated:- 25-11-2021 - SMT. SONAL K. MISHRA AND SHRI RAJESH KUMAR SINGH, MEMBER PROCEEDINGS U/s. 98 of the Chhattisgarh Goods Services Tax Act, 2017 (herein-after referr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charged on renting of a motor vehicle is not denied accordingly they can take input tax credit of GST @ 18% (i.e. CGST 9% and SGST 9%) which is mentioned on the Rent bill by service provider who has given him such Buses on rent. 4. Personal Hearing:- Keeping with the established principles of natural justice, personal hearing in the matter was extended to the applicant, as requested by them and accordingly, Shri Pravin Kumar Agrawal, C.A. authorized representative of the applicant appeared before us for hearing on 24.09.2021 in person. The authorized representative of the applicant reiterated their contention that as per Sr.No. 8 (vi) of Notification No. 11/2017-CT (Rate) Dated 28.06,2017 credit of input tax charged on renting of a motor vehicle is not denied accordingly they can take input tax credit of GST @ 18% (i.e. CGST 9% and SGST 9%) which is mentioned on Rent bill by service provider who has given him such Buses on rent. 5. The legal position, analysis and discussion:- At the very outset, we would like to make it clear that the provisions for implementing the CGST Act and the Chhattisgarh GST Act, 2017 [hereinafter referred to as the CGST Act and the CGGST A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... started till now and no relevant rent agreement has been executed between the parties. He has also submitted the Registration Certificate of both the involved parties. 5.3 In the instant case the applicant is engaged in the service of transportation of passengers by air conditioner Buses (i.e. Bus operator) which falls under the SAC code 9964. The applicant has in their application informed that they are charging an amount (consideration) from passengers inclusive of fuel cost and accordingly paying GST @ 5% (i.e. CGST 2.5% and SGST 2.5%). They have taken such Buses on rent from another service provider. Such service provider issues them bill relating to such services of rent for such buses along with GST @18% (i.e. CGST 9% and SGST 9%) and GST is separately mentioned in such rent bills received. 5.4 It has further been the contention of the applicant that as per Sr.No.8(vi) of Notification No. 11/2017-CT (Rate) Dated 28.06.2017, in the case of Transport of passengers by any motor vehicle designed to carry passengers where the cost of fuel is included in the consideration charged from the service recipient , GST Rate is 5% (i.e. CGST 2.5% and SGST 2.5%) and that also a con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 notifies that the central tax, on the intra-State supply of services of description as specified in column (3) of the Table below, falling under Chapter, Section or Heading of scheme of classification of services as specified in column (2), shall be levied at the rate as specified in the corresponding entry in column (4), subject to the conditions as specified in the, corresponding entry in column (5) of the said Table :- TABLE SI.No. Chapter, Section or Heading Description of Service Rate (per cent.) Condition (1) (2) (3) (4) (5) 1 Chapter 99 All Servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot been taken [Please refer to Explanation no. (iv)] (iv) Transport of passengers, with or without accompanied belongings, by air, embarking from or terminating in a Regional Connectivity Scheme Airport, as notified by the Ministry of Civil Aviation. 2.5 Provided that credit of input tax charged on goods used in supplying the service has not been taken [Please refer to Explanation no. (iv)] (v) Transport of passengers by air, with or without accompanied belongings, in other than economy class. 6 - (vi) Transport of passengers by motor cab where the cost of fuel is included in the consideration charged from the service recipient. 2.5 Provided that credit of input tax charged on goods and services used in supplying the service has not been taken [Please refer to Explanation no. (iv)] (vii) Passenger transport services other than (i), (ii), (iii), (iv), (v) and (vi) above. 9 - 9 Heading 9965 (Goods transport se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a, in the Ministry of Finance (Department of Revenue) No. 11/2017-Central Tax (Rate), dated the 28th June, 2017, published in the Gazette of India, Extraordinary, Part II Section 3, Sub-section (i), vide number G.S.R.690 (E), dated the 28th June, 2017, namely :- In the said notification, (a) . (b) .. (c) against serial number 8, for item (vi), in columns (3), (4) and (5) and the entries relating thereto, the following shall be substituted, namely : - (3) (4) (5) (vi) Transport of passengers by any motor vehicle designed to carry passengers where the cost of fuel is included in the consideration charged from the service recipient. 2.5 Provided that credit of input tax charged on goods and services used in supplying the service, other than the input tax credit of input service in the same line of business (i.e. service procured from another service provider of transporting passengers in a motor vehicle or renting of a motor vehicle), has not been taken. (Please refer to Explanation no. (iv)) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvoice or debit note issued by a supplier registered under this Act, or such other taxpaying documents as may be prescribed; [(aa) the details of the invoice or debit note referred to in clause (a) has been furnished by the supplier in the statement of outward supplies and such details have been communicated to the recipient of such invoice or debit note in the manner specified under section 37;] (b) he has received the goods or services or both. [ Explanation . -For the purposes of this clause, it shall be deemed that the registered person has received the goods or, as the case may be, services- (i) where the goods are delivered by the supplier to a recipient or any other person on the direction of such registered person, whether acting as an agent or otherwise, before Sr during movement of goods, either by way of transfer of documents of title to goods or otherwise; (ii) where the services are provided by the supplier to any person on the direction of and on account of such registered person.] (c) subject to the provisions of [section 41 or section 43A], the tax charged in respect of such supply has been actually paid to the Government, either in cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .11 However, for the availment of input tax credit (ITC), as provided supra, there are exceptions / exclusions prescribed under Section 17 (5) of the CGST Act, 2017 which provides as under: - (5) Notwithstanding anything contained in sub-section (1) of section 16 and sub-section (1) of section 18, input tax credit shall not be available in respect of the following, namely: - ((a) motor vehicles for transportation of persons having approved seating capacity of not more than thirteen persons (including the driver), except when they are used for making the following taxable supplies, namely: - (A) further supply of such motor vehicles; or (B) transportation of passengers; or (C) imparting training on driving such motor vehicles; (aa) vessels and aircraft except when they are used - (i) for making the following taxable supplies, namely: - (A) further supply of such vessels or aircraft; or (B) transportation of passengers; or (C) imparting training on navigating such vessels; or (D) imparting training on flying such aircraft; (ii) for transportation of goods; (ab) services of general insurance, servicing, repair and mainten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hapter V relating to Input Tax credit vide section 16 and section 17 of the CGST Act, 2017 and this eligibility to ITC has nothing to do with Notification no. 11/2017-CT(Rate) dated 28.6.2017. For the impugned Passenger transport services of Heading 9964, viz. Transport of passengers by any motor vehicle designed to carry passengers where the cost of fuel is included in the consideration charged from the service recipient , in as much as eligibility to the tax rate as stipulated under sr. no 8(vi) of Notification no. 11/2017-CT(Rate) dated 28.6.2017 as amended is concerned, the same is fully dependent on the condition of availment or otherwise of the Input tax credit by the applicant, as discussed in the preceding para. 6. Thus in view of the above discussions we come to the considered conclusion that the applicant would be eligible to input tax credit on the input services provided they fulfill the conditions as stipulated under section 16 read with section 17 of the CGST Act, 2017, whereas eligibility or otherwise of the tax rate as provided under sr. no. 8(vi) of Notification no. 11/2017-CT(Rate) dated 28.6.2007, as amended vide Notification No. 31/2017-C.T. (Rate), dated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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