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2020 (12) TMI 1305 - AAR - GSTScope of Advance Ruling application - question raised by the Applicant before the Authority is pending with the DGGEST - Classification of services - rate of tax on sub contractor, where, he executes works contract pertaining to dam, wherein the principal contractor is liable for tax @ 12% - period from 22-01-2017 to 25-01-2018 - N/N. 11/2017 as amended - HELD THAT - The question raised by the Applicant before the Authority is pending with the DGGEST and proceeding against the Applicant have already been started by the DGGST Intelligence Regional Unit Indore. As per the proviso to Section 98 (2) of CGST Act, the Authority shall not admit the application where the question raised in the application is already decided in any proceedings in the case of an applicant - as per the proviso to Section 98 (2) of CGST Act, the Authority shall not admit the application where the question raised in the application is already pending or decided in any proceedings in the case of an applicant. It is concluded that the application is liable to be rejected as per the proviso of section 98(2) of CGST Act.
Issues Involved:
1. Determination of the applicable tax rate for a sub-contractor executing works contracts for a dam, where the principal contractor is liable for tax at 12%, for the period from 22-01-2017 to 25-01-2018. 2. Examination of whether the application for Advance Ruling is admissible under Section 98(2) of the CGST Act, 2017. Detailed Analysis: 1. Applicable Tax Rate for Sub-Contractor: The Applicant, a works contractor, received a sub-contract from a principal contractor for executing works related to the Narmada Valley Project. The principal contractor was paying tax at 12% as per Notification No. 11/2017 (T) (R) amended on 22.08.2017, which specified a 12% tax rate for certain works contracts supplied to the Government or a Governmental authority. The Applicant raised invoices with a 12% tax rate to the principal contractor for the period from September 2017 to January 2018. However, Notification No. 24/2017 added entry (vi) with effect from 1-09-2017, and further, entry (ix) was added on 25-01-2018, specifying that the rate of tax for sub-contractors would be 12% if the sub-contract work supplies to the Government and attracts 12% tax in the hands of the principal contractor. The Applicant argued that this notification should be considered clarificatory and thus retroactive from 22-08-2017, aligning the sub-contractor's tax rate with that of the principal contractor. 2. Admissibility of the Application under Section 98(2): The Deputy Director, DGGST Intelligence, informed that proceedings regarding short payment/non-payment of GST against the Applicant had been initiated and were pending. As per Section 98(2) of the CGST Act, the Authority shall not admit an application where the question raised is pending or decided in any proceedings under the Act. The Applicant contended that the issue of the applicable tax rate for sub-contractors is a pure question of law and does not fall under the ambit of Section 67, which deals with suppression of transactions, stock, or excess claim of Input Tax Credit. The Applicant argued that the proceedings initiated by DGGSTI do not constitute a proceeding within the meaning of Section 67 and thus should not bar the Advance Ruling application. Findings and Conclusion: Findings: The Authority reviewed the application and submissions, noting that the issue of the applicable tax rate for the sub-contractor was already under investigation by the DGGST Intelligence. As per the proviso to Section 98(2) of the CGST Act, the Authority cannot admit an application where the question is pending or decided in any proceedings under the Act. The judicial citations provided by the Applicant were considered but found irrelevant in this context. Conclusion: The application was rejected based on the proviso of Section 98(2) of the CGST Act, 2017, which prohibits the admission of applications where the question raised is already pending in any proceedings. Ruling: The application for Advance Ruling was rejected as per Section 98(2) of the CGST Act, 2017. The ruling is subject to the provisions under Section 103(2) and may be declared void under Section 104(1) of the GST Act.
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