GST - Applicant, a service recipient, satisfies s.95(c), hence can make an application u/s 97(2)(b) on applicability of notification 12/2017-CTR - AAR rejecting application on ground of lack of locus standi incorrect : HC

Cus - When penalty was imposed on the basis of statements made by certain persons and without any other material, insistence on pre-deposit would effectively render petitioner's remedy of an appeal before CESTAT, illusory: HC

ST - Appellant is not liable to pay any service tax on corporate guarantee provided by them to various banks/financial institutions on behalf of their associate enterprises for working capital loans under Banking and Financial Institutions: CESTAT

GST - Rooms rented out in Nandini Ashram to pilgrims not within boundary of temple, not entitled for exemption; taxable @12% - Tweets not relevant to decide exemption: AAR

2023-TIOL-526-HC-KOL-GST

Anmol Industries Ltd Vs West Bengal AAR & GST

GST - Appeal filed against order of Single Judge - Petition was filed challenging an order passed by the AAR rejecting the application on the ground that the appellant had no locus standi to file such an application - Single Judge had relegated the appellants to the appellate authority under the Act to agitate the correctness of the order passed by AAR - Aggrieved, the present appeal.

Held: AAR in the order impugned in the writ petition has made a slight attempt to go into the aspect as to who is the applicant before the AAR seeking an advance ruling and concluded that the appellants being recipients of service is not entitled to maintain an application before the AAR - Under the provisions of the Central Goods and Services Tax Act, 2017, in Section 95(c) the term "applicant" has been defined to mean any person registered or desirous of obtaining registration under the Act - Sub-Section (1) states that an applicant desirous of obtaining an advance ruling may make an application in such form and manner accompanied by such fees, as may be prescribed, stating the question on which the ruling is sought - Sub-Section (2) of s.97 deals with the question on which advance ruling can be sought for under the Act - The application filed by the appellants would fall under clause (b), Section 97(2) as the appellants seek for a ruling as regards applicability of an exemption notification no. 12/2017- CGST (Rate)  - If that be the case, it will be well within the jurisdiction of the AAR to consider the application on merits rather than rejecting the same on the ground of lack of locus standi - Appeal is allowed - Writ petition is allowed and the order passed by the AAR dated 9th February, 2023 is set aside and the mater is remanded back to the West Bengal AAR to decide the application on merits and in accordance with law: High Court [para 3, 4, 7]

- Appeal/Petition allowed: CALCUTTA HIGH COURT

2023-TIOL-75-AAR-GST

Nandini Ashram Trust

GST - Applicant is a registered trust under the Bombay Charitable Trust Act - They also hold 12AA certificate issued by the Income Tax Authorities - ln terms of the trust deed the applicant provides accommodation to pilgrims who visit the Ambaji Temple and the room rent is Rs. 1000/-per day - Applicant seeks a ruling on the following viz. Whether they are liable for GST registration? and Whether they are liable to pay tax?

Held : Submission made by the applicant is incomprehensible, lacking in facts, and at best cryptic - Authority is, therefore, constrained to pass the ruling in terms of what is mentioned in the application filed - There is nothing on record to substantiate the claim that all the accommodation granted are to the pilgrims visiting the Ambaji Temple - Authorized representative of the applicant during the course of personal hearing was specifically asked as to whether the Nandini Ashram, was owned by the trust managing the Ambaji Temple, to which he answered in negative - On being further asked, whether the rooms of Nandini Ashram which they were renting to pilgrims is located in the precincts of the Ambaji Temple, it was informed that it was not within the boundary of the temple - Going by the definition of precinct as mentioned under chapter 39 of the GST flyer, it is emphatically clear that the applicant is not eligible for the benefit of Sr. No. 13 of the notification No. 12/2017-Central Tax (Rate) - In terms of Sr. No. 14 of the notification No. 12/2017-CT (Rate), services by a hotel, inn, guest house, club or campsite, by whatever name called, for residential or lodging purposes, having declared tariff below one thousand rupees per day or equivalent was exempted - However, in terms of notification No. 4/2022-CT (Rate) effective from 18.7.2022, serial number 14 and the entries relating thereto were omitted - By notification No. 3/2022-CT (Rate) dated 13.7.2022, notification 11/2017-CTR was further amended and accordingly the applicant is leviable to GST at the rate of 12% - Applicant's reliance on the tweets [in the matter of SGPC collecting rents is exempt] to substantiate his averment that they are eligible for exemption is not relevant to the facts of the case - Held, therefore, that applicant is liable for GST registration in terms of section 22, subject, however, to the threshold limit of his aggregate turnover exceeding rupees twenty lakh rupees - Applicant is liable to pay GST in terms of amending notification No. 3/2022- CT (Rate) dated 13.7.2022, effective from 18.7.2022: AAR [para 9, 11, 15, 16, 18, 19]

- Application disposed of: AAR

2023-TIOL-524-HC-MAD-GST

Pinstar Automotive India Pvt Ltd Vs Addl.Commissioner

GST - Case of department is that certain supplies had been made to petitioner by third parties and petitioner has averred that entirety of amount including tax has been paid to suppliers - While this is so, it is the stand of petitioner that those suppliers are delinquent insofar as that their registrations have been cancelled and tax paid by petitioner has not been remitted by them to Department - It is the stand of petitioner that they had fulfilled all conditions stipulated under Statute and had adduced proof for payment of consideration within a period of 180 days and therefore, they are eligible to ITC - The stand was rejected by respondent who passed an O-I-O confirming the demand proposed in SCN - This order has become final, the petitioner preferring to make an application for rectification of errors apparent on the face of record under Section 161 of the Act - The Court has no intention of intervening in conclusion of assessing authority - However, the procedure followed by authority is clearly contrary to third proviso to Section 16 of the Act that necessitates that, where the authority proposes to take a view adverse to applicant, due process must be followed - Admittedly, there has been no opportunity granted to petitioner prior to passing of impugned order and this is a fatal flaw - Said Order is set aside - The petitioner shall be heard by issue of notice and orders passed on Section 161 application within a period of four (4) weeks : HC

- Writ petition allowed: MADRAS HIGH COURT

2023-TIOL-525-HC-DEL-CUS

Ashish Bansal Vs Pr.CC

Cus - The penalty has been imposed on petitioner solely on the basis of a string of statements recorded in some other proceedings - Petitioner disputes that he has any connection with said persons or that he has carried out any business or transactions with them - The petitioner also submits that respondents have not recovered any contraband from them or any proceeds that could be attributed to contraband - Their bank account statements also indicate that there has been no substantial withdrawal from the same - Court had noted that said penalty was also imposed on the basis of statements made by certain persons and without any other material - Insistence on pre-deposit would effectively render petitioner's remedy of an appeal before CESTAT, illusory - CESTAT is directed to consider the petitioner's appeal on merits, without insisting on any pre-deposit: HC

- Petition disposed of: DELHI HIGH COURT

2023-TIOL-342-CESTAT-DEL

Sowar Pvt Ltd Vs CST

ST - Appeal filed with narrow scope of determination to the effect as to whether activity of giving corporate guarantee is taxable as Banking and other Financial Services - Activity of appellant was alleged amounting to provide Banking and other Financial Services and a SCN was served proposing demand of Service Tax alongwith interest and proportionate penalty for providing said service - SCN itself recites that appellant has given corporate guarantee on behalf of their group companies but has not charged any commission or interest or fees for providing said corporate guarantee - Same is also apparent from letter given by Syndicate Bank from where was issued the impugned corporate guarantee that loanee company has undertaken that no commission is paid by them to their corporate guarantor - Thus, it becomes clear that there is no element of consideration involved in present case applying the definition of service to these facts in present appeal - Question of activity of extending corporate guarantee by appellant to its associate companies cannot be called as service in terms of provision in section 65 B (44) of the Act - There is no evidence on record with respect to observations of Commissioner (A) that corporate guarantee given by appellant has benefitted the associate enterprises in two ways - Issue is no more res-integra as has also been conceded on behalf of department - The order under challenge is hereby set aside: CESTAT

- Appeal allowed: DELHI CESTAT