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2022-TIOL-770-HC-ORISSA-GST
P K Ores Pvt Ltd Vs CST
GST - Belated filing of returns - Demand of interest for the period April 2019 to December 2019 - Petitioner has contended that non-payment of admitted tax is attributed to non-disbursal of substantial amount standing due from IDCOL, a Government Agency - It is further submitted that, as of now, entire tax component stands deposited, though belatedly - Petitioner had also requested before the Commissioner to allow it to discharge interest demand of Rs.68,15,506/- by instalments but this prayer was rejected and which, the petitioner claims is not only an arbitrary exercise of power but misreading of the provision of statute - Petition filed against the said rejection.
Held: The liability to pay interest under Section 50(1) is a statutory obligation which the taxpayer is obligated to comply with "ON HIS OWN" accord - The words "ON HIS OWN" employed in sub-section (1) of Section 50 are not used in sub-section (3) of Section 50 - Therefore, it is clear that the liability to pay interest under Section 50(1) is self-determined and automatic without intervention from anyone - The liability to pay interest under Section 50, being compensatory for non-deposit of tax within the stipulated period envisaged under Section 39, is not penal in nature, therefore, the petitioner cannot escape the rigours of liability of interest - When the levy of interest emanates as a statutory consequence and such liability is a direct consequence of non-payment of tax, such a levy is different from the levy of interest which is dependent on the discretion of the assessing officer - The default arising out of non-payment of tax on an admitted liability in the case of self-assessment attracts automatic levy of interest, whereas the default in filing incomplete and incorrect return attracts best judgment assessment in which the levy of interest is based on the adjudication by the assessing officer - Payment of tax is not under a contract between the taxpayer and the State, there is plain repugnance between contract and taxation; taxation is the very antithesis of contract - In the present case, the admitted tax on self-assessment being not deposited within the period stipulated, the petitioner is liable to compensate the State Government by way of interest which is provided for under the statute - Since interest is a part of tax and such tax being belated payment in respect of self-assessment, Section 80 of the OGST Act clearly excludes grant of instalment under the present fact-situation - There was, therefore, no scope for the Commissioner of CT & GST to entertain application for grant of instalment - Commissioner of CT & GST is justified in rejecting the prayer of the petitioner to deposit the interest levied on account of belated deposit of admitted tax as per self-assessed returns, furnished in terms of Section 39 read with Section 59 of the CGST/OGST Act, in instalment under Section 80 read with Rule 158 - Writ petition is dismissed: High Court [para 7.3, 7.5, 8.6, 8.7, 11.1, 12]
- Petition dismissed: ORISSA HIGH COURT
2022-TIOL-63-AAR-GST
Auriga Research Pvt Ltd
GST - Applicant has entered into an agreement with Bangalore International Airport Limited (BIAL) for operation of Covid Testing Facility - Applicant has stated that apart from the rent charged from them, BIAL has also made a Revenue Sharing arrangement wherein the applicant will pay BIAL a share on the gross revenue earned during the month - The applicant states that BIAL raises tax invoices for both rent and revenue sharing separately on them - BIAL raises the tax invoices as per mutually agreed payment terms between BIAL and the applicant and charges GST @ 18% on the value of its revenue share - The tax invoices are being generated by BIAL bearing SAC 996761 i.e., Airport Operation Services - The applicant has also submitted the tax invoices raised (SAC 998592) by them towards each customer for conducting COVID (RTPCR) test - Applicant is of the view that they are providing Covid Testing facilities at BIAL and such activities are exempt from levy of GST vide Notification No. 12/2017-CTR as such activities are covered under Sl.No.74 Heading 9993 which specifically exempts services by way of healthcare services - Applicant seeks an advance ruling on the following question - Whether Goods and Services Tax will be levied on Revenue Sharing invoices raised by one party on to another party wherein the outward supply of services is exempt in nature.
Held: Applicant states that BIAL raises tax invoices for revenue sharing on them - As per the definition of 'Supplier' as per section 2(105) of the Act, 2017 and as per Section 31 which talks about tax invoice, BIAL becomes the supplier since, BIAL is issuing tax invoices to the applicant - Section 95 (c) of the CGST Act 2017 defines "Applicant" as any person registered or desirous of obtaining registration under the said Act - Read with section 95(a) of the Act, 2017, any person registered or desirous of obtaining registration under CGST Act 2017 can seek advance ruling only in relation to the supply of goods or services or both being undertaken or proposed to be undertaken - In the instant case, Authority observes that Auriga Research Private Limited, who have filed the application, is not a supplier - Thus the instant application is not admissible and liable for rejection in terms of Section 98(2) of the CGST Act 2017 - Application is hereby rejected as "inadmissible": AAR
- Application rejected: AAR
2022-TIOL-62-AAR-GST
Auto Cluster Development And Research Institute
GST - Renting of immovable Property Services i.e. 'Pure Service' provided by the applicant to PCSCL, a Government Entity, are not by way of any activity in relation to functions entrusted to a Municipality under article 243W of the Constitution or entrusted to a Panchayat under Article 243 G of the constitution and, therefore, the impugned service supplied by the applicant is not exempt under Notification No. 12/2017-CTR as amended from time to time and, therefore, the applicant has to discharge GST @ 18% - TDS provision are made operative with effect from 01.10.2018, hence, PCSCL is liable to deduct TDS in the subject case, in respect of payments made to the applicant against receipt of renting of immovable property services: AAR
GST - Questions raised seeking an advance ruling pertain to the recipient of the impugned supply and is not 'in relation to the supply of goods or services or both being undertaken or proposed to be undertaken by the applicant' and, therefore, cannot be answered in terms of the provisions of Section 95 of the CGST Act, 2017: AAR
- Application disposed of: AAR
2022-TIOL-61-AAR-GST
Navi Mumbai Sports Association
GST - Applicant M/s. Navi Mumbai Sports Association seeks an advance ruling in respect of the following questions - Whether the amounts viz. Entrance / Admission fees which forms part of corpus fund, Annual Subscription fees and Annual Maintenance fees collected by the applicant from its members is liable to GST?; Whether the amount / fees collected towards rendering training / coaching in recreational & sports activities [ viz. (a.) Football / Basketball/ Athletic / Cricket / Swimming coaching fees (b.) Summer coaching fees (c.) Dance coaching d. Karate / Physical fitness are exempt from payment of GST under entry no. 80 of notification 12/2017-CTR dated 28th June, 2017?
Held:
+ In view of the amended Section 7 of the CGST Act, 2017, [Finance Act, 2021 read with notification 39/2021-CT dated 21.12.2021 notifying 1st January 2022 as the date on which s.108 of FA, 2021 shall come into force], the applicant and its members are distinct persons and the fees received by the applicant from its members are nothing but consideration received for supply of goods/services as a separate entity - Resultantly, Entrance/Admission fees, Annual subscription & Maintenance fees etc. are liable to tax under the GST Laws: AAR
+ Applicant is registered under Section 12AA of the Income Tax Act and are providing training and coaching in Football, Basketball, Athletic, Cricket, swimming, Karate, Dance, Physical fitness and 'summer coaching' - Football, Basketball, Athletic, Cricket, swimming, and Karate are “sports" and 'Dance' would be covered under “Arts" - However, Physical fitness can neither be considered as “sports" nor “Arts" or “culture” - Further, the term 'summer coaching' is a general term which cannot be said to cover sports, Arts or culture - Therefore, training and coaching in Football, Basketball, Athletic, Cricket, swimming, Karate, Dance by the applicant would be covered under Entry No. 80 of Notification No. 12/2017-CTR as amended and entitled for exemption [Nil rate] whereas 'Physical fitness' training and 'summer coaching' are not covered under the said Entry No. 80 and not entitled for exemption: AAR
- Application disposed of: AAR
2022-TIOL-60-AAR-GST
Rahul Ramchandran (Inspire Academy)
GST - Applicant provides services by way of Pre-School education and as per clause 2(y)(i) of notification 12/2017-CTR , the applicant i.e. Nashik Cambridge Pre-School can be considered as an "Educational Institution” - Consequently, services provided by them to its students, faculty and staff attracts NIL rate of GST in view of Sr. No. 66 of Notification No. 12/2017-CT, dated 28th June, 2017 - Furthermore, "Nashik Cambridge Pre-school" is also entitled for Nil rate of tax as per Serial No. 66 of the Notification no. 12/2017-CT (Rate), on the supply of Pre-school education service to its students against fee; on the supply of transportation service to its Pre-school students without any consideration; on the supply of transportation service to its Pre-school students for some consideration; on the supply of transportation service to its faculty and staff for some consideration and on the supply of canteen service to its faculty and staff for some consideration - Insofar as supply of goods such as books, stationery, drawing material, sports goods, foods items, milk, beverages to its students without any consideration, as the cost thereof will be covered in the fee charged, since such goods are a part of the composite supply comprising of principal supply in the form of educational services, the applicant is entitled for Nil rate of tax as per Sr. no. 66 of 12/2017-CTR, in respect of supply of the aforementioned goods to its pre-school students without any consideration - However, when the said goods are sold by the applicant for some consideration, it implies sale of goods and the same cannot be considered as a part of any composite supply - Inasmuch as a standalone supply of goods cannot be covered under Sr. no. 66 of 12/2017-CTR which is applicable only in respect of supply of service: AAR
- Application disposed of: AAR
2022-TIOL-23-AAAR-GST
State Examination Board
GST - AAR held that State Examination Board has nothing to do with imparting education; that State Examination Board is a Board established by the Government of Gujarat for the limited purpose of conducting various types of examinations and would, therefore, not be covered under the definition of 'Educational institution'; that the applicant is eligible to claim exemption benefit under Sr.No.5 of Notification No.12/2017-Central Tax(Rate) in respect of services supplied for the exams mentioned at Sr.No.9 to 15 of the list of exams; that, however, no such exemption is available in respect of services supplied for the exams mentioned at Sr.No.1 to 8 and 16 to 23 of the list; that the applicant is not eligible to claim exemption benefit under Sr.No.66(a) & (aa) of Notification No.12/2017-Central Tax(Rate) - Aggrieved, the present appeal has been filed by the State Examination Board.
Held : Notification 12/2017-CTR has been amended vide notification 14/2018-CTR and in terms of which clause (iv) has been inserted in the Explanation in paragraph 3 to read - “For removal of doubts, it is clarified that the Central and State Educational Boards shall be treated as Educational Institution for the limited purpose of providing services by way of conduct of examination to the students” - In Circular no. 151/07/2021-GST dated 17 June 2021, it is clarified that National Board of Examination ( NBE) is an ‘Educational Institution' insofar as it provides services by way of conduct of examination, including any entrance examination, to the students - These exams do not provide employment to the successful candidates but make the successful candidates eligible for the post of jobs of teachers or lecturers - Since the above criteria is complied with, benefit of exemption under sr. no. 66(aa) of 12/2017-CTR is available to the State Examination Board being the ‘educational institution' insofar as it provides services by way of conduct of exams at Sr. no. 1 to 12 of the list - As for entitlement of benefit of exemption under Sl. No. 5 of 12/2017-CTR, for exams at Sr. no. 13 & 14, education programme i.e. Diploma in Home Science and GCC Type Steno, not being recognised by any law, cannot, by any stretch of imagination be considered as functions entrusted to a Panchayat under article 243G of the Constitution, hence exemption is not available - Conducting departmental examination (given at Sr. no. 15) cannot be covered for exemption under Sl. no.5 or under Sl. No. 66(a) and (aa) of exemption notification 12/2017-CTR - Contention of appellant that conducting departmental examination is outside the scope of s.7 as consideration is not received is not the issue on which advance ruling was sought - Appeal disposed of: AAAR
- Appeal disposed of: AAAR |
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