|
2023-TIOL-594-HC-CHHATTISGARH-GST
Farhat Construction Vs State of Chhattisgarh
GST - Petitioner submits that the appellate authority dismissed the appeal only on the ground of limitation inasmuch as the appeal was barred by 536 days - It is submitted that in view of the order of the Supreme Court dated 10 January 2022, the period from 15.03.2020 till 28.02.2022 shall be excluded for the purpose of limitation; that since the appellate authority has not taken note of the order of the Supreme Court - 2022-TIOL-04-SC-MISC-LB, the matter be remitted back to the first appellate authority for reconsidering the appeal - Counsel for respondent submitted that the adjudication order dated 29.01.2021 was challenged in appeal but was dismissed by order dated 10.11.2022; that the appeal was filed after 10 months from the date of start of limitation; that the appeal ought to have been filed within three months and that the appellate authority has only a period of one month that he can condone.
Held: The period of limitation of 90 days which was extended by the Supreme Court starts from 01.03.2022 and will come to an end on 31 May 2022 - Admittedly, the appeal has been filed on 07.10.2022 - There is no specific pleading in the petition as to how the order dated 28/29.01.2021 could not be challenged within the extended period of limitation or further one month thereafter - According to the decision of the Supreme Court, extending the limitation of three months comes to an end in the month of May 2022 and further one month on the satisfaction of the appellate authority, if to be added, will expire in the end of June 2022 - No merit in the appeal, hence dismissed: High Court [para 8, 12, 14]
- Petition dismissed: CHHATTISGARH HIGH COURT
2023-TIOL-593-HC-ALL-GST
Jalsa Resorts Vs State of UP
GST - On the basis of the report submitted by the Special Investigation Branch, notice under Section 74 was issued to the petitioner demanding Rs.48,96,000/- amount of tax, penalty and interest - The petitioner neither replied to the SCN nor produced relevant documents for assessing the correct tax from July 2017 to March 2018 - Considering the turnover as one crore, the assessing authority by the ex parte order assessed the GST as Rs.18,00,000/- and penalty of equivalent amount along with interest of Rs.12,96,000/- thus confirming a total amount of Rs.48,96,000/- - Before the appellate authority, the petitioner submitted that there was no basis for taking the turnover as Rs.1 crore and demanding tax and interest and imposing penalty - Appellate authority upon examining the documents recovered from the resort by the SIB noticed that the petitioner had received an amount of Rs.17,95,000/- whereas in the returns they had shown an advance of Rs.3,73,983.05 only - Accordingly, the appellate authority had assessed the tax amount as Rs.1,80,000/- each for State GST and Central GST and penalty amount of Rs.3,60,000/- as well as interest of Rs.3,19,320/- totalling Rs.10,39,320/- - Petitioner is aggrieved and has filed the present writ petition. Held: The assessment order cannot be said to be based on presumption inasmuch as the appellate authority has examined each and every document submitted by the petitioner as well as the documents recovered by the Special Investigation Branch - There is, therefore, no error in the impugned order - Writ petition, being without any merit, is rejected: High Court [para 11, 12]
- Petition rejected: ALLAHABAD HIGH COURT
2023-TIOL-80-AAR-GST
Colourband Dyestuff Pvt Ltd
GST - Applicant is seeking a ruling on the eligibility of ITC on works contract services & material procured and utilised towards foundation for setting up of the following machineries Sand mill and spray dryer, HAG plant, ETP as well as having tank farm and fire tank and DG set. Held: Law is unambiguous as far as ITC is concerned in respect of the Plant & Machinery - ITC is not available in respect of works contract services when supplied for construction of an immovable property - Further, ITC is not available for goods, services or both received for construction of an immovable property even when used in the course or furtherance of business - Held, therefore, that WCS taken for structure on which machineries are fixed to earth by foundation and services taken for setting up plant i.e. MS steel structure is eligible subject to the findings recorded - ITC on structure/shed, erected on the left side of the Sand mill and spray dryer and the ITC on the structure/shed [i.e. roof and its supports] is not eligible - ITC in respect of foundation and support structure in respect of ETP and Transformer is blocked in terms of Section 17(5) of the CGST Act, 2017 - Steel [TMT bar] being procured by the applicant company and used while taking Works Contract services for making the said foundation to fix machineries to earth is eligible subject to the findings recorded: AAR
- Application disposed of: AAR
2023-TIOL-79-AAR-GST
Uttarakhand Public Financial Strengthening Project
GST - Applicant is seeking an advance ruling as to whether the “The service provider can charge GST on whole amount of bill (monthly rental + night charges + fuel on mileage basis) or only on monthly rental (excluding night charges + fuel on mileage basis)?”. Held: Section 15 of the Act, 2017 provides that the value of a supply of goods or services or both shall be the transaction value, which is the price actually paid or payable for the said supply of goods or services or both where the supplier and the recipient of the supply are not related and the price is the sole consideration for the supply - P rovisions of Section 15 are very clear and in unambiguous terms it has been mandated that any amount that the supplier is liable to pay in relation to such supply but which has been incurred by the recipient of the supply and not included in the price actually paid or payable for the goods or services or both - The use of words “supplier is liable to pay in relation to such supply” brings out the intent of the legislature and leaves no room for any doubt - “Consideration” has been defined in Section 2(31) of the CGST Act, 2017 which mandates that consideration includes any payment whether in money or otherwise made or to be made or monetary value of any act or forbearance for the inducement of the supply of goods - Such phraseology in the statute leaves no doubt about the spirit and essence of the Act - W ithout fuel, the motor vehicle does not operate (run) and without running i.e. moving from one place to another, the act of motor vehicle hire services does not happen - The motor vehicle hire services have the integral component of running/ operating the vehicle from one place to another for transportation - C ontract entered between the applicant and the provider of services is for motor vehicle hire services, wherein the liability to arrange fuel and the maintenance of the vehicle, so deployed lies with the service provider and is a comprehensive contract with the consideration which varies depending upon the kilometre travelled - Hence, the reimbursement of expenses for providing said services, under any head is nothing but the additional consideration for the provision of said services and attracts GST on the total value - A ll the consideration including reimbursement of any kind shall form part of value of supply in view of Section 15 of the CGST Act, 2017 - Held, therefore, that the service provider has to charge GST on the whole amount of bill, which in the instant case is monthly rental plus night charges and fuel on mileage basis - Application disposed of: AAR [para 8.2, 8.3, 8.4, 8.5, 8.6, 10]
- Application disposed of: AAR
2023-TIOL-16-AAAR-GST
Bansal Industries
GST - Appellant is in the business of ginning and pressing of cotton as well as crushing of oil seeds (Cotton Seeds obtained in the ginning of raw cotton (narma)) - The appellant had requested an advance ruling seeking to know whether Purchase of raw cotton from Kacha Arhtiya, who is a registered taxpayer, constitutes a purchase from agriculturist so as to attract liability under Reverse Charge Mechanism in view of sub-section (3) of section 9 of CGST/PGST Act, 2017 - AAR had held that the appellant is liable to pay GST under reverse charge mechanism in terms of notification 13/2017-CTR and not the Kacha Arhtiya - Aggrieved, the appellant is before the appellate authority. Held: The appellant themselves have accepted that kaccha Arhtiya acts as an agent of the agriculturist and the appellant procures raw cotton from the kaccha Arhtiya - It is an accepted position that kaccha Arhtiya does not hold title to the raw cotton so supplied to him by the agriculturist - However, he gets the rights in goods in respect of receiving, storing, cleaning, grading and finally auctioning of raw cotton which he receives from the agriculturist without getting any title over the raw cotton - Therefore, in terms of entry 1(b) of Schedule II, this transfer is deemed as supply of services for the purpose of CGST Act, 2017 - Transaction between an agriculturist and that of Kaccha Arhtiya is a transaction involving supply of services and, therefore, by no stretch of imagination, it could be covered under RCM -Notification No. 4/2017-CT relates to supply of goods viz. Raw cotton - Any interpretation which leads to illogical conclusion has to be eschewed - Therefore, it is clear that by no canon of interpretation, Kaccha Arhtiya can be made liable to pay GST in terms of Notification No. 4/2017-CT (as amended) - Moreover, the ultimate objective of RCM is to fix the GST liability on the person who is better organized being engaged in the business of supply of goods and services - Pakka Arhtiya, by its very nature of activity is much more organised in the business dealing as compared to Kaccha Arhtiya as he is purchasing cotton primarily for trading and hence is having much higher level of business volume and turnover - This also logically leads to fixing the liability of GST on Pakka Arhtiya in terms of sub-section (3) of Section 9 of CGST Act - Submission of the appellant as regards the order of AAAR, Haryana has conveniently overlooked the basic nature of the ruling given by the Authority for Advance Ruling inasmuch as the said rulings are in the nature of “ in personam ” and not " in rem" and, therefore, their applicability as well as their protection cannot be sought by others who were not party to the said proceedings - Order passed by the AAR is upheld and the appeal stands dismissed: AAAR [para 20, 21, 22, 23, 24]
- Appeal dismissed: AAAR |
|
