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2023-TIOL-561-HC-ALL-GST
Nagarjuna Agro Chemicals Pvt Ltd Vs State of UP
GST - Question which is raised is as to whether the department is enjoined to issue a notice under sub-section 3 of Section 61 of the Act, 2017, once returns have been submitted by the assessee before initiating action u/s 74 of the Act or not ?
Held: The argument that unless deficiency in return is pointed out to the assessee, and an opportunity is given to rectify such deficiency, that the department can proceed under Section 74 is not borne out from the statutory scheme and the argument in that regard therefore, must fail - The scrutiny proceedings of return as well as proceeding under Section 74 are two separate and distinct exigencies and issuance of notice under Section 61(3), therefore, cannot be construed as a condition precedent for initiation of action under Section 74 of the Act - Petitioner has a remedy of preferring appeal which has not been availed -Two weeks time given for filing the appeal and in the event such an appeal is filed, the same shall be entertained without raising any objection with regard to limitation - Petition is dismissed: High Court
- Petition dismissed: ALLAHABAD HIGH COURT
2023-TIOL-560-HC-MAD-GST
Lodha Roadways Vs Deputy State Tax Officer
GST - Petitioner is a transporter and is seeking quashing of the order of detention passed under Section 129(1) of the Act, 2017 and consequential release of conveyance.
Held: Though Section 129 provides for various situations where release of conveyance and goods may be sought, Section 129(6) is specific to a transporter and enables a transporter to seek release of the conveyance in the circumstances mentioned therein, being, upon payment of penalty under sub-section (3) or a sum of Rs.1.00 lakh, whichever is less - Thus, the benefit as above, is always available to the petitioner - The submission made now seeking release of conveyance, is on the ground that tax has been paid in full - It is not for the transporter to make this submission as such payment, if at all, would have been borne by the assessee concerned, and not the transporter - To be noted that the assessee is not on affidavit before this Court attesting to the aforesaid position - No merit in the petition, hence the same is dismissed: High Court [para 6, 7, 9]
- Petition dismissed: MADRAS HIGH COURT
2023-TIOL-77-AAR-GST
Godrej Properties Ltd
GST - Applicant has stated that they own non-agricultural undeveloped immovable property and is now developing the Property III to be registered as "Godrej Woodland-Phase III" which shall comprise of 266 residential plots - Applicant states that the sale consideration of the plots includes consideration towards plot of land, development of basic infrastructure prescribed by authorities in the approved plan as well as cost for providing all other common facilities, amenities and specifications to be provided within the project - Applicant further states that the cost of electrical connectivity to the common amenities, water line and plumbing till the plot, etc is included in the sale consideration; that the applicant upon obtaining the Release Certificate from the competent authority shall offer in writing the possession of the plot, to the purchaser/s in terms of the draft agreement for sale, to be taken within two months from the date of issue of release certificate as per RERA Act - It is the understanding of the applicant that since sale of land is neither supply of goods nor supply of service, it would not matter whether the land is developed or undeveloped; that where booking of plot, agreement of sale and sale deed are entered into after receipt of release certificate from the competent authorities, then the entire consideration would be towards sale of developed land and hence the entire consideration would not be liable to GST due to Entry No.5 of III Schedule to CGST / KGST Act, 2017 - A pplicant relies on the decision of the Advance Ruling No. KAR ADRG 31/2022 dated 08-09-22 in the case of M/s. Rabia Khanum where the advance received towards sale of plot is not liable to GST - Applicant has, therefore, sought an advance ruling in this regard.
Held: It is seen that the applicant has separately collected the consideration towards the (a) Plot area, (b) basic infrastructure development charges, and (c) other common amenities and facilities - As far as consideration towards the plot area is concerned, it is clear that the same is covered under entry 5 of Schedule III, and hence the transaction shall be treated neither as a supply of goods nor a supply of services - Consideration collected towards basic infrastructure development is part of the consideration towards the plot and is not a consideration for a separate supply - In the pertinent situation, the construction of immovable property is present but there is no transfer of property in goods from the applicant to the plot owners - These constructions are done on the land not transferred to the plot owners but remains in the ownership of the applicant till it is relinquished to the local authorities, hence the amount collected on account of this, only increases the value of the land (plot) and hence do not form a separate supply - Club House and other common amenities are provided as a service with no transfer of title to land or buildings and hence would not be covered under entry 5 of Schedule III of the CGST Act - The ownership rights on the above facilities are found to be still remaining with the Promoter and the Promoter can assign these facilities to anyone of his choice and the Purchaser is only provided with access rights, hence this provision of access rights for a separate consideration would definitely form a separate supply under the provisions of Section 7(1) of the CGST Act, 2017 - Estimated Other Charges collected on behalf of the future service provider in advance and treated as deposit in the invoice is clearly a service provided and hence is a supply by the applicant - Corpus fund is in the nature of deposit for future expenses and if the future expenses are known when the amount is collected, the same attains the nature of advance and hence becomes taxable at the time of its collection itself - Insofar as the applicability of GST if the sale price is a consolidated price which includes land cost, basic infrastructure development charges and other common amenities and facilities charges, since there is only service of access to club house and common amenities and the same is considered as a supply, hence the value proportionate to club house and common amenities are applicable to GST: AAR [para 12, 13, 14, 16, 17, 19]
- Application disposed of: AAR |
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