2021 (9) TMI 1190 - HC - GST

Applicable rate of tax under the GST Act on payment of royalty on the Government of Gujarat - HELD THAT - The advance ruling authority on 19th May, 2020 held that amendment dated 31st December, 20218 was clarificatory and therefore applicable from 1st July, 2027. The statutory appeal preferred by the petitioner also resulted against him. On the basis of the entry no.29 of Notification no.11 of 2017 Central Tax (Rate) dated 28th June, 2017 concluded the royalty to be @ 18%. Issue urgent Notice returnable on 6th October, 2021. The request is made for the grant of interim relief, which has been sought. On the returnable date, the learned advocate for the petitioner is permitted to make a request for the same.

Summary

Issues:
1. Applicability of tax rate under GST Act on payment of royalty to the Government of Gujarat.
2. Interpretation of Notification no.11/2017 - Central Tax (Rate) dated 28th June, 2017.
3. Validity of impugned orders dated 11th February, 2021 and 19th May, 2020.
4. Request for interim relief pending the final hearing.

Analysis:

1. The petitioner, a partnership firm engaged in mining blacktrap minerals, sought relief through a writ petition. The prayers included quashing the impugned orders dated 11th February, 2021, and 19th May, 2020, related to the tax rate on royalty paid to the Government of Gujarat. The petitioner argued for a tax rate of 25% CGST + 2.5% SGST under Entry 17 of Notification no.11/2017 - Central Tax (Rate) dated 28th June, 2017. Alternatively, the petitioner sought a declaration that no tax is payable on mining royalty under the reverse charge mechanism or that royalty should be considered as a tax, not subject to GST.

2. The petitioner had initially applied for an advance ruling under Section 97 of the GST Act to determine the applicable tax rate on royalty payments. The advance ruling authority, on 19th May, 2020, concluded that an amendment dated 31st December, 2018, was clarificatory and applicable from 1st July, 2017. The statutory appeal by the petitioner was also decided against them, with the conclusion that royalty should be taxed at 18% based on Entry no.29 of Notification no.11/2017 - Central Tax (Rate) dated 28th June, 2017.

3. The Court heard the arguments presented by Mr. Uchit Sheth, the petitioner's advocate, and reviewed the evidence on record. Urgent notice was issued, returnable on 6th October, 2021, with a request for interim relief pending the final hearing. The petitioner was allowed to make a formal request for interim relief on the specified date, with a commitment to consider the arguments from both sides before making a decision.

4. The judgment highlighted the complexities surrounding the tax treatment of royalty payments in the mining sector, emphasizing the need for a thorough legal analysis to determine the correct tax rate under the GST Act. The Court's decision on the validity of the impugned orders and the request for interim relief would significantly impact the petitioner's tax obligations and financial liabilities, making it a crucial legal matter requiring careful consideration and deliberation.