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GST HIGH COURT CASE

2018-TIOL-129-HC-MUM-GST

Kanakia Hotels & Resorts Pvt Ltd Vs UoI

GST - Petitioner claims that, inspite of their best efforts, the form GST TRAN-1 for availing transitional credit was not accepted online, not due to the fault of the petitioner but due to technical problems in the running of the GSTN system - Petitioner, therefore, seeks a direction to respondent GSTN to enable online submission of the declaration in order to enable the petitioner to claim Input Tax credit of CENVAT - Counsel for Respondent revenue submits that the matter was deliberated in the Law Committee and consequently CBIC has issued notification 48/2018-CT whereby rule 117(1A) has been inserted extending the date for submitting the declaration electronically in form GST TRAN-1 by a further period not beyond 31 st March 2019; that the issue of the petitioner stands resolved - Counsel for the Petitioner, therefore, seeks to withdraw the petition with liberty to file a fresh petition in case the issues are not resolved by the respondents - Liberty as prayed for is granted and the Petition is dismissed as withdrawn: High Court [para 5, 6]

- Petition dismissed: BOMBAY HIGH COURT

2018-TIOL-128-HC-AHM-GST

Cera Sanitaryware Ltd Vs UoI

Petitioner is engaged in manufacture of ceramic sinks and washbasin and also trading in such goods across India - With the introduction of GST from 01.07.2017 certain structural changes in tax collection were made requiring the legislature to make transitional provision - Section 140 of CGST Act, 2017 enabled the dealers to take credit of duties paid on goods held by them on the date of implementation of the law - For such purpose, however, necessary declaration had to be made in the terms of Rule 117 of the CGST Rules - Sub-rule (1) therein envisage time limit of 90 days from the appointed day for such purpose - In the context of such time limit provision, challenge was made in the case in which petitioner had argued that no such time limit is envisaged in section 140 of the Act - Rule making authority therefore cannot insert such time limit - Vires of Sub-Rule (1) of Rule 117 of CGST Rules was challenged - By separate judgement passed, court rejected such a challenge - Case of the petitioner is that the declaration in terms of Rule 117 was filed within time but certain necessary details were not provided - The petitioner would therefore not benefited out of the insertion of Sub-Rule (1A) of Rule 117 - It was in this context that the petitioner had also challenged the time limit provision contained in the Rules - Without recording separate reasons since court have already given elaborate reasons in the separate judgement, this challenge is not entertained: HC

- Petitions dismissed: GUJARAT HIGH COURT

GST AAAR CASES

2018-TIOL-17-AAAR-GST

GST - Ruling was sought by the applicant as to whether GST is leviable on 'Marg Sudharan Shulk' and 'Abhivahan Shulk' charged by the Forest Division, Dehradun from the non-government, private and commercial vehicles engaged in mining work, in lieu of use of forest road - AAR had held that 'Marg Sudharan Shulk' is nothing but toll charges collected by applicant from users for using forest road and the said toll charges are being used for maintenance of the forest road and, therefore, no GST is applicable - However, as regards 'Abhivahan Shulk' charged and collected by applicant in respect of forest produce carried out by a person, it was held that as per the Uttarakhand Transit of Timber and Other Forest Produce Rules, 2012, a person who desires to obtain forest produce is required to be registered with the forest department after paying applicable fee and the said 'Abhivahan Shulk' is charged on the basis of quantum and quality of forest produce; that since it cannot be called as toll tax and rather is a form of consideration received by applicant in lieu of services provided to the person for carrying forest product, the applicant is liable to pay GST @18% on the said 'Abhivahan Shulk' under SAC 9997 as 'Other services' - aggrieved by this portion of the order, Appeal filed before AAAR.

Held: Government fees are not specified in Schedule III of Section 7 and Abhivahan Shulk is also not covered by any notification for exception in terms of section 7(2)(b) ibid, hence there is no ambiguity about taxabilty of Abhivahan Shulk - same is rightly classifiable under the residuary heading 9997 as ‘Other services' and with tax rate of CGST @9% , SGST @9% - as regards alternate plea by the appellant regarding payment of GST by recipients on reverse charge basis, the said plea did not form part of the original application that was filed before the AAR and, therefore, no orders can be passed on the same - AAR ruling upheld and appeal dismissed: AAAR

- Appeal dismissed: AAAR

 

GST AAR CASES

2018-TIOL-170-AAR-GST

Madhya Pradesh Paschim Kshetra Vidyut Vitaran Company Ltd

GST - Projects under DDUGY, IPDS, ADB, SSTD, Saubhagya Yojana, FSP and all other schemes of government were carried out for business purpose and, therefore, benefit of concessional rate of 12% (CGST + SGST) as per the notification 24/2017-CTR r/w 31/2017-CTR is not available to the applicant - contract entered into by the applicant squarely falls under the Works Contract and is covered against entry no. (ii) of Sl. No. 3 of the Table of notification 11/2017-CTR and applicable rate of tax is 18% (GST + SGST): AAR

- Application disposed of: AAR

GST - Applicant is engaged in operation of a mall and multiplex - Items supplied in Snack bar and Food court shall be chargeable @5% GST (CGST + SGST) in terms of notification 11/2017-CTR subject to satisfaction of conditions laid down against Sr. no. 7; Applicant shall be entitled to ITC of tax paid on Movie Distributor Revenue sharing bill, Projector rental bill and Advertising bill in full; in respect of Security Agency bill and Housekeeping bill, ITC shall be restricted to apportioned part which is utilized in providing taxable output services, ITC attributable to exempted output service to be subjected to reversal u/s 17(1) of CGST Act; ITC of GST paid on goods purchased for the purpose of maintenance of mall such as Vitrified tiles, marble, granite, ACP sheets, Steel Plates, TMT Tor (saria), bricks, cement, paint, chemicals, sanitary items like wash basis, urinal pots and toilet accessories shall not be admissible in view of clause (c) of Section 17(5) of the CGST Act, 2017; ITC of GST paid on Works Contract Service viz. maintenance contract of building is also not admissible in view of clause (d) of Section 17(5) of the CGST Act, 2017: AAR

- Application disposed of: AAR

GST - Supply of solar inverter, controller, battery and panels would be covered under the head 'Solar Power Generating System' as a whole in terms of Sr. no. 234 of Schedule-I of notification 1/2017-CTR and attract @5% GST [CGST + SGST] and such supply will be treated as 'composite supply' - supply of solar inverter and solar panels together will also fall under the definition of 'Solar Power Generating System' and attract 5% GST [CGST + SGST] in terms of notification 1/2017-CTR and be treated as 'composite supply': AAR - Application disposed of: AAR

GST - Applicant seeks a ruling on the question whether 'CENVAT' credit of goods and services used for erection of infrastructure to which fibre cables are connected for leasing to Telecommunication Operators, is available to them. Held: Infrastructure provided by the applicant is different from 'Telecommunication Tower' - Infrastructure is not an immovable property and can be easily moved to another place for use without any damage to the entire infrastructure - infrastructure being a movable property can be classified as 'goods' in terms of section 2(52) of the CGST/SGST Act, 2017 - accordingly, applicant can avail ITC of GST paid on the goods & services in terms of section 16(1) of the CGST/SGST Act, 2017 consumed while providing the supply in question: AAR

- Application disposed of: AAR

 

JEST GST by Vijay Kumar

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