| 2020-TIOL-1109-HC-KOL-GST
Subhas And Company Vs CCGST
GST - The petitioner is a dealer registered under the WB VAT Act, who later migrated to the GST regime and became a registered dealer under the CGST Act and the WBGST Act - The petitioner filed the present writ, having raised the point as to whether non-allowance of transitional Credit on account of inputs held in stock as on the appointed date under Section 140(3) of the CGST/SGST Act, 2017 due to inability to file GST TRAN-2 before the due date as provided for in Rule 117 (4) of the CGST/SGST Rules, 2017 is violative of Articles 14, 19(1) (g) and 265 of the Constitution of India and is grossly against the principles of natural justice and whether the petitioner is entitled to get an opportunity to file the declaration in CGST TRAN –2 in order to be allowed to take transitional Credit on account of inputs held in stock as on the appointed date.
Held - In the decision of the High Court in M/s. Blue Bird Pure Pvt. Ltd. vs. Union of India, it is observed that Government has acknowledged that on account of technical difficulties, the tax payers were indeed unable to file the statutory form within time and CBIC vide notification issued from time to time, extended the date prescribed for filing of form GST TRANI under Rule 117(1A) of the CGST Rules and the period, as on date, was extended by various notifications reference is also made in unreported decision of the High Court of Delhi in Brand Equity Treaties Limited vs. The Union of India & Ors. wherein it has been specifically observed in paragraph 22 that the provision (Rule 117) as being directory in nature, insofar as it prescribes the time-limit for transitioning of credit and therefore, the same would not result in the forfeiture of the rights, in case the credit is not availed within the period prescribed - However, this cannot be taken to mean that availing of CENVAT credit can be in perpetuity - Transitory provisions have to be given its due meaning - Transition from pre-GST Regime to GST Regime has not been smooth and therefore, what was reasonable in ideal circumstances is not in the current situation. In absence of any specific provisions under the Act, we would have to hold that in terms of the residuary provisions of the Limitation Act, the period of three years should be the guiding principle and thus a period of three years from the appointed date would be the maximum period for availing of such credit. The petitioner has attempted to file TRAN within the time limit framed under the Rule - Hence the authorities concerned are directed to reopen the form TRAN II or accept manual filing of GST TRAN II to allow the petitioner to claim transitional credit held in stock as on the appointed date after proper verification including the invoices submitted by the petitioner: HC
- Writ petition allowed: CALCUTTA HIGH COURT
2020-TIOL-1108-HC-DEL-GST
Sharda Chemicals Vs UoI
GST - The petitioner sought that directions be issued to the Revenue authorities concerned to open the GST portal so that the petitioner could upload the GST Tran-I Form.
Held - The decision of this court in Brand Equity Treaties Limited Vs. The Union of India & Ors. is pending consideration before the Supreme Court, which stayed the decision - Directions were also issued to the authorities concerned to re-open the GST portal so that ll those who were not able to upload the GST Tran-I Form could do so by 30.06.2020 - Notice issued to the relevant authorities - Matter adjourned to 30.06.2020: HC
- Writ petition disposed of: DELHI HIGH COURT
2020-TIOL-157-AAR-GST
Posco India Steel Distribution Centre Pvt Ltd
GST - Applicant issues consignment note, however, the actual transaction is done through the third-party transporter (who also issues consignment note) - classification of the services supplied by applicant would be under heading 996511 - GST applicable would be as mentioned in Entry 9(iii) of 11/2017-CTR i.e. @5% without ITC - as the third party transporters are not charging any GST on services supplied by them to applicant, there is no question of availment of ITC: AAR
- Application disposed of: AAR
2020-TIOL-156-AAR-GST
Liberty Translines
GST - Applicant issues consignment notes during execution of the service of transportation of goods and has opted for 5% GST payable by the recipient under reverse charge - sometimes, applicant functions as a mere transporter of goods for which consignment note is issued by some other party which acts as GTA for that transaction - there is a company named POSCO which provides GTA service and has opted for GST payable on forward charge basis @12% by claiming ITC - since POSCO does not have enough fleet of its own, it sub-contracts GTA service to applicant who provides the GTA service as a sub-contractor - applicant wants to issue a consignment note to POSCO who is also a GTA and the latter will, in turn, issue a second consignment note to final client for transportation of the goods by road happening in the same vehicle belonging to the applicant where e-way bill is prepared by POSCO only - applicant wishes to know whether he can also act as a GTA in terms of 20/2017-CTR and issue consignment note and charge GST @12% on forward charge basis.
Held: A consignment note is a proof of the custody of goods during the movement and transportation of goods - for a single transaction and the same movement of goods, there cannot be multiple consignment notes, hence there will be only one consignment note for movement of goods to a place, to be issued by POSCO - in view thereof, applicant, in respect of the subject transaction cannot be treated as a GTA and, therefore, cannot charge GST @12% under forward charge mechanism as a GTA - question as to whether POSCO would be eligible to claim credit of the 12% GST charged by applicant in its invoice ought to have been raised by POSCO and not applicant, therefore, Authority refrains from answering this question - the fourth question raised as to whether it is procedurally correct to have two GTA service providers and two consignment notes for the same movement of the goods is not answered as the same is not pertaining to any of the matters mentioned in s.97(2) of the Act: AAR
- Application disposed of: AAR
2020-TIOL-155-AAR-GST
Ashish Arvind Hansoti
GST - Applicant is not entitled to claim ITC of GST paid on inputs and input services used for construction of commercial immovable property, which is subsequently used for renting - since the Orissa High Court decision in Safari Retreats P Ltd. has not attained finality as the department has filed an appeal in the Supreme Court, same cannot be relied upon: AAR
- Application disposed of: AAR
2020-TIOL-154-AAR-GST
A Raymond Fasteners India Pvt Ltd
GST - Threaded metal nuts merit classification under Tariff Item 7318 1600 of the CTA - Applicant should have applied for each product individually since classification is sought for each individual product, hence in respect of only the first product a ruling is given and not in respect of the balance nine products: AAR
- Application disposed of: AAR
2020-TIOL-153-AAR-GST
Hitachi Power Europe Gmbh
GST - Applicant (Project Office) has been awarded contracts for supply of goods and supervisory services by M/s BGR Boilers P Ltd. in relation to projects of M/s NTPC Ltd., M/s Meja Urja Nigam P Ltd. and M/s Damodar Valley Corporation being mega power projects located in Maharashtra, UP and West Bengal respectively - Few employees of the HO of the applicant work in the project office in India for whom all the employer's obligation like Form-16 in accordance with the provisions of s.203 of the Income Tax Act, 1961 are done by the project office (applicant) - since most of these expat employees have their primary bank accounts outside India, salary is paid to these employees from the HO's bank account located abroad, for administrative convenience - applicant, citing the definition of a ‘Project Office' under FEMA, 1999, has submitted that the project office is merely a place of business of a Foreign Company to carry out business in India and does not constitute an establishment; that the head office and project office are not separate establishments under the GST legislation and would accordingly be not subject to levy of GST - ruling is, therefore, sought as to whether GST is applicable on the accounting entry made for the purpose of Indian accounting requirements in the books of accounts of project office for salary cost of Expat employees.
Held: Project Office is an extension of the foreign Head Office - For GST to be applicable on the accounting entry made for the purpose of Indian accounting requirements in the books of accounts of Project Office for salary cost of Expat employees paid by the Head Office, such accounting entry should be seen as a supply of goods, services or both - since the Authority finds that there is a relation of employer and employee between the Project Office and the expat employees, the provisions of Schedule III of the CGST Act comes into play inasmuch as services by an employee to the employer in the course of or in relation to his employment will not be considered as a supply and, therefore, will not attract GST: AAR
- Application disposed of: AAR
2020-TIOL-152-AAR-GST
Rishabh Chopra
GST - Section 95 of the CGST Act allows the Authority to decide the matter in respect of supply of goods or services or both, undertaken or proposed to be undertaken by the applicant on the matters or questions specified in sub-section (2) of s.97 - In the present case, the maintenance charges are collected by the society for having rendered Club or Association services to all the four co-owners including the applicant - Thus, the supply of services, in respect of which the question has been raised is being undertaken by the society and not the applicant - Applicant is a recipient of services in the subject transaction - impugned question raised by applicant is in relation to procedure to be followed by the society in respect of issue of invoices to applicant for the common area maintenance charges and hence the issue is not within the purview of s.97(2) of the Act, hence applicant cannot be admitted - Application rejected: AAR
- Application rejected: AAR
2020-TIOL-151-AAR-GST
Portescap India Pvt Ltd
GST - Section 95 of the CGST Act allows the Authority to decide the matter in respect of supply of goods or services or both, undertaken or proposed to be undertaken by the applicant - Applicant, in the present case, has not undertaken the supply in the subject case - applicant is a recipient of services pertaining to renting of immovable property - the impugned transactions are not in relation to the supply of goods or services or both undertaken or proposed to be undertaken by the applicant and, therefore, the subject application cannot be admitted by the Authority - Application rejected: AAR
- Application rejected: AAR
2020-TIOL-150-AAR-GST
Futuredent
GST - Applicant has not undertaken the supply and is not also proposing to undertake the supply - the applicant is a recipient of services from a person situated abroad - impugned transactions are not in relation to the supply of goods or services or both, undertaken or proposed to be undertaken by the applicant and, therefore, the subject application cannot be admitted as per the provisions of s.95 of the CGST Act, 2017 - Application is rejected: AAR
- Application rejected: AAR |
