2022-TIOL-1147-HC-ALL-GST
Varun Gupta Vs UoI
GST - Petitioner seeks issuance of a writ of certiorari quashing order dated 19.05.2022 passed by the respondent directing provisional attachment of bank accounts of the petitioner and of his firm - Earlier the bank account was attached by order dated 22.10.2021 and the writ petition filed against the same was allowed by order dated 11.05.2022 on the ground that no proceeding u/s 74 was pending as on the date of attachment - Consequently, respondent no. 2 has passed the order dated 18.05.2022 intimating the bank that the attachment has been quashed but on the very next day, the respondent no.2 has passed the impugned order dated 19.05.2022 again provisionally attaching the said bank account and mentioning thereunder that proceedings have been launched u/s 67 and s.74 of the Act, 2017.
Held: Revenue counsels have admitted before the Court on 14.07.2022 that 'no proceedings u/s 74 of the Act, 2017' has yet been initiated - Facts of the present case clearly reveals that no proceedings under Section 74 of the C.G.S.T. Act has yet been initiated - That apart the respondent No.2 while passing the impugned order, has neither recorded his opinion nor referred to any tangible material which necessitated him to pass the impugned provisional attachment order so as to protect the interest of the Government revenue - The basic ingredients required for passing the impugned order under Section 83 of the CGST Act as also authoritatively pronounced by Hon'ble Supreme Court - 2021-TIOL-179-SC-GST and binding upon the respondents under Article 141 of the Constitution of India, have been deliberately and completely ignored by the respondent No.2 [Commissioner, CGST, Ghaziabad] - Despite the earlier order having been quashed by this Court, the respondent no.2 has chosen to pass the impugned order on the very next day of withdrawing the earlier order - The impugned order has been passed in a most arbitrary and illegal manner and in complete disregard of provisions of Section 83 of the C.G.S.T. Act read with Rule 159 of the C.G.S.T. Rules 2017 and the law laid down by Hon'ble Supreme Court in the case of Radha Krishan Industries - 2021-TIOL-179-SC-GST - Consequently, the impugned order cannot be sustained and deserves to be quashed with exemplary cost - Writ petition is allowed with cost of Rs. 50,000/- which shall be paid by the respondents to the petitioner within two weeks: High Court [para 14, 16]
- Petition allowed: ALLAHABAD HIGH COURT
2022-TIOL-104-AAR-GST
State Industrial Development Corporation of Uttaranchal Ltd
GST - Applicant submitted that the work of Electrification and or Construction (Erection, installation and commissioning) of Electric Substations/ Increase in the capacity of Electric Substations etc. are being undertaken through M/s Uttarakhand Power Corporation Ltd. (UPCL) and M/s Power Transmission Corporation of Uttarakhand Limited (PITCUL) and both of these entities are not eligible to avail the Input Tax Credit (ITC) - While issuing draft estimates to the applicant for the Works Contract, M/s UPCL / M/s PITCUL, charges GST twice, firstly on the value charged by the different vendors and then again on the value arrived at after adding other components namely Contingency Charges, O/H & Supervision Charges, Labor Cess on Centralized Mat. etc., consequently paying GST on the transaction value which also includes GST - Applicant is seeking an advance ruling on the issue as to "Whether double charging of GST as mentioned in the draft estimate (s) submitted by PITCUL/UPCL in respect of contract involving supply of equipment/ machinery & erection, installation & commissioning services with civil work is correct as per the present GST regime"?
Held: Component of the GST paid by M/s UPCL & M/s PITCUL on the supplies received by them from their vendors is the cost for them and is one of the many components which constitutes the transaction value for the supply in question and is the price actually payable (transaction value) for the said supply of work contract to the applicant - Therefore, the transaction value arrived by M/s UPCL & M/s PITCUL is in consonance with the provisions of the GST Act, 2017 and the GST is payable on transaction value so arrived - This situation arose due to the fact that while issuing draft estimates, both M/s UPCL & M/s PITCUL, had shown the component of GST borne by them, which is an integral part of the cost to them, as a different entry and not a combined entry - Had it been shown as a single entry (without any bifurcation/reflection of the GST charged by their vendors to them), it appears that there would have been no doubt in this regard: AAR
- Application disposed of: AAR
2022-TIOL-103-AAR-GST
Malabar Cements Ltd
GST - Applicant is a government of Kerala owned Public Sector Company engaged in the manufacturing of cement - They seek an advance ruling on the following issue - Whether input tax credit is admissible on GST charged by service provider on hiring of bus/motor vehicle having approved seating capacity of more than 13 persons for transportation of employees to and from the workplace? And if available, whether it would be restricted to the extent of cost borne by the applicant ?
Held: Provisions of sub-section (5) of Section 17 of the CGST Act which specifies the goods and services on which input tax credit is not available is relevant to decide the question raised by the applicant - The provisions of Section 17(5) of the Act have been amended with effect from 01.02.2019 by CGST (Amendment) Act, 2018 - It is evident that only the tax paid on motor vehicles for transportation of persons having approved seating capacity of not more than thirteen persons (including the driver) is not available as input tax credit except under the situations prescribed therein and there is no restriction in availing input tax credit of the tax paid on motor vehicles or hiring or renting of motor vehicles having approved seating capacity of more than thirteen persons - In the instant case, the applicant has engaged the service provider to provide transportation facilities to the employees in non-air-conditioned buses for commuting to and from the workplace and it is stated that the service provider is using motor vehicles having an approved seating capacity of more than thirteen persons (including the driver) for the same - Further, it is stated that applicant issues pass only to their employees, so that the transportation facility can be used by such employees alone and that a nominal amount is recovered on monthly basis from the employees to whom such pass is issued - Applicant cannot avail of the input tax credit of tax paid corresponding / attributable to the cost of transportation recovered from the employees - Therefore, the eligibility of the applicant to avail input tax credit will be restricted to the extent of the cost of transportation borne by the applicant: AAR
- Application disposed of: AAR
2022-TIOL-102-AAR-GST
Kerala State Government Insurance Department
GST - Kerala State Insurance Department (KSID) is a department of the government of Kerala administering various insurance and other benefit schemes - Applicant seeks to know as to whether GST is applicable for the services offered on MOU for a scheme to provide ‘subscription-based benefit' for compensation in the event of death, to the members of the ‘Kudumbasree' which is a state government agency.
Held: In the instant case, the service is provided by the applicant; a Department of the State Government, which is administering various insurance and other benefit schemes of the Government of Kerala - On perusal of the MoU entered by the applicant with Kudumbasree, it is seen that Kudumbasree is collecting the annual subscription and paying to the applicant along with all the necessary information regarding the beneficiary /members and nominee in the specified format and in the event of death of the insured member, the benefit is transferred to the member through Kudumbasree - From the MoU, it is evident that Kudumbasree is acting only as an agent for the collection of premium and disbursal of benefit to its members and the service is provided by the applicant to the members - Hence the recipient of the services provided by the applicant is the individual members of Kudumbasree and accordingly the services are covered by the exemption under Sl.No.6 of Notification No. 12/2017 Central Tax (Rate) dated 28.06.2017 - Held that the services provided by the applicant are exempted: AAR
- Application disposed of: AAR
