2022 (5) TMI 397 - HC - GST

Valuation - Constitutional Validity - supply of construction service - Exclusion of value of land - whether the impugned notification providing for 1/3rd deduction with respect to land or undivided share of land in cases of construction contracts involving element of land is ultra-vires the provisions of the GST Acts and/or violative Article 14 of the Constitution of India? - Constitutional Validity of Entry 3(if) of Notification No. 11/2017-Central Tax (Rate) as well as Entry 3(if) of Notification No. 11/2017 State Tax (Rate) - vires of Section 7(2) of the GST Acts read with Entry No. 5 of Schedule III to the GST Acts as well as ultra-vires Section 9(1) and Section 15 of the GST acts HELD THAT - Supply includes all forms of supply made or agreed to be made for a consideration by a person in the course or furtherance of business. If a transaction qualifies as supply then it shall be treated as supply of goods or services as referred to in the Schedule II. If the activities or transactions are specified in the Schedule III or if they are notified as such by the Government, then they shall be treated as neither supply of goods nor supply of services. It is not in dispute that the sale of land and building are not liable to tax under the GST Acts. However, as the exclusion of sale of building from the tax net is subject to clause (b) of paragraph 5 of Schedule II, the transaction with respect to the sale of building is taxable qua the construction services unless the entire consideration is received by the supplier after the receipt of completion certificate or first occupation whichever is earlier - The applicable rate of tax for all supply of services is stipulated by the Notification No. 11/2017-Central Tax (Rate). The rate of tax for construction services is provided in the Entry 3 of the said notification. It is thus provided by way of notification that in so far as the construction services involving transfer of land or undivided share of land are concerned, the deduction for such transfer of land or undivided share of land will be given to the extent of one-third of the total consideration charged for the entire transaction. In other words the value towards the transfer of land or undivided share in land is deemed to be one-third of the total consideration - It is the validity of such mandatory deeming fiction sought to be imposed by way of delegated legislation which is being tested by this Court vis- -vis the provisions of the CGST Act as well as the Constitution of India. What is sought to be taxed by the Parliament/State Legislatures? - HELD THAT - It is not as if the very base of the levy was sought to be changed under the CGST Act. While earlier VAT and service tax were imposed on tripartite agreements, such taxes were sought to be consolidated under the CGST Act with a specific exclusion of land element. In other words the construction which was carried out by the developer in accordance with the agreement with the prospective buyer, which was earlier taxable under the Vat/service tax law is now sought to be taxed under the CGST Act and therefore deduction is given for sale of land - Even otherwise supply under Section 7 of the CGST Act includes supply of goods or services made or agreed to be made for a consideration. Thus the factum of supply would be initiated only once the agreement is entered into between the supplier and recipient and such agreement is for consideration Thus the legislative intent is to impose tax on construction activity undertaken by a supplier at the behest of or pursuant to contract with the recipient. There is no intention to impose tax on supply of land in any form and it is for this reason that it is provided in the Schedule III to the GST Acts that the supply of land will be neither supply of goods nor supply of services. Relevance of developed vis-a-vis undeveloped land - HELD THAT - n the present case what is sought to be argued by the revenue is that the exclusion of sale of land will not be available since the land is a developed piece of land. It is difficult for us to accept such argument as at the point of time when the buyer entered into the picture, the land was already developed. Thus, even without going to Schedule III, the only service which is supplied by the supplier to the recipient is the construction undertaken for the buyer and it is such supply alone which can be taxed. Hence the fact that the land is not a plain parcel of land but a developed land cannot be a ground for imposing tax on the sale of such land - It is not as if deduction is not granted if land is not developed. Deduction is granted for any transfer of land. Mr. Vyas has also not contended that the deduction of 1/3rd as stipulated in the notification is not available to the writ applicants. Thus sale of land under Schedule III to the GST Acts covers sale of developed land even as per the impugned notification. Hence the only question which is to be determined is whether such artificial deeming fiction of 1/3rd deduction is ultra-vires the provisions of the CGST Act or the Constitution. Measure of Tax - HELD THAT - When the statutory provision requires valuation in accordance with the actual price paid and payable for the service and where such actual price is available, then tax has to be imposed on such actual value. Deeming fiction can be applied only where actual value is not ascertainable - the mandatory application of deeming fiction of 1/3rd of total agreement value towards land even though the actual value of land is ascertainable is clearly contrary to the provisions and scheme of the CGST Act and therefore ultra-vires the statutory provisions. Arbitrariness of the deeming fiction by the impugned notification - HELD THAT - If the 14th GST Council meeting minutes which led to the insertion of the impugned Notification is perused, it becomes clear that the deduction was contemplated only in the context of flats wherein it was difficult to ascertain the value of the undivided share of land. However when it came to actual issuance of Notification, a standard rate of deduction came to be provided irrespective of the nature of the transaction or whether it is a case involving transfer of land itself or undivided share in land. Moreover the discussion in the GST council meeting minutes which is part of the record would show that there was an apprehension that a standard rate of deduction for land may not withstand judicial scrutiny. Interestingly, this was in fact mentioned by the Deputy Chief Minister of the State of Gujarat. This was even when the discussion was in respect of flats while the ultimate notification was issued and made applicable even to other transactions such as sale of land with construction of bungalow - Such deeming fiction which leads to arbitrary and discriminatory consequences could be clearly said to be violative of Article 14 of the Constitution of India which guarantees equality to all and also frowns upon arbitrariness in law. Arbitrary deeming fiction has led to measure of tax having no nexus with charge - HELD THAT - The arbitrary deeming fiction by way of delegated legislation has led to a situation whereby the measure of tax imposed has no nexus with the charge of tax which is on supply of construction service. It is well established that the measure of tax should have nexus with the charge of tax. Section 15(5) does not further the case of the respondents - HELD THAT - The prescription under Section 15(5) of the CGST Act has to be by rules and not by notification. Be that as it may, wherever a delegated legislation is challenged as being ultra-vires the provisions of the CGST Act as well as violating Article 14 of the Constitution of India, the same cannot be defended merely on the ground that the Government had competence to issue such delegated piece of legislation. Even if it is presumed that the Government had the competence to fix a deemed value for supplies, if the deeming fiction is found to be arbitrary and contrary to the scheme of the statute, then it can be definitely held to be ultra-vires. What if the supplier artificially inflates the price of land thereby deflating the value of constuction service? - HELD THAT - Valuation by adding 10% profit to cost of production or manufacture or the cost of acquisition of goods or cost of provision of services is a statutorily accepted method of valuation. Even if such cost based valuation is not possible then the residual method is provided under Rule 31 of the GST Rules which also provides for using reasonable means consistent with the principles and general provisions of Section 15 as well as valuation rules - the revenue is not remediless even in a case where it doubts the correctness of the value assigned in the contract towards construction. If it is established that such value was not the sole consideration for the service, then resort can be had to the valuation rules and value can be derived by applying the cost plus profit method or a reasonable value consistent with the principles and provisions of the Statute - When such detailed statutory mechanism for determination of value is available then the impugned deeming fiction cannot be justified on the basis that it is meant to curb avoidance of tax when in fact such fiction is leading to arbitrary consequences. Already similar mechanism existed under service law which is not required to be deviated from? - HELD THAT - When such workable mechanism for deduction of land was already in force under the service tax regime, the same ought to have been continued. Instead, the Government has chosen to fix a standard rate of deduction without any regard to different possible factual scenarios which is completely arbitrary and violating Article 14 of the Constitution of India. Entry No. 5(b) of schedule II relevant for determining validity of impugned notification or not? - HELD THAT - Entry 5(b) of Schedule II is not relevant for deciding the present controversy which has more to do with valuation rather than chargeability to tax. It is not in dispute that construction of building is a taxable service unless the entire consideration is received after issuance of completion certificate. However the question is that if the transaction is taxable then what should be the value of service and whether deduction towards land value can be stipulated by way of uniform rate of 1/3rd. Detailed reasons have been given to show how such deeming fiction is not only contrary to the scheme of the GST Acts but also it is grossly arbitrary and violating Article 14 of the Constitution. Applicability of decision in the case of VKC Footsteps 2021 (9) TMI 626 - SUPREME COURT - HELD THAT - The reliance placed by the learned ASG on the decision of the Supreme Court in the case of VKC Footsteps Pvt. Ltd. is misplaced. In that case the Supreme Court came to a conclusion that Rule 89(5) of the GST Rules was not in conflict with Section 54(3) of the CGST Act. Thereafter it was observed that once the rule was valid, minor defects in the formula would not invalidate the rule itself and therefore the assessees were relegated to make representation before the GST Council. However, in the present case, it is found that the impugned notification to be contrary to the provisions and scheme of the GST Acts as well as arbitrary and violative of Article 14 of the Constitution of India. Applicability of decision in the case of Narne Construction 2013 (2) TMI 298 - SUPREME COURT - HELD THAT - The reliance placed by the revenue on the decision of the Apex Court in the case of Narne Construction Pvt. Ltd is completely misplaced. The said judgement was in the context of the Consumer Protection Act, 1986 and is thus as such inapplicable while interpreting a taxing statute. In any case it was categorically observed by the Supreme Court that the development of land was assured to the buyers. We have already observed that in a given case there may be tax liability if the development of land is undertaken pursuant to contract with buyer. However, if the land is already developed and thereafter agreement is entered into with the buyer for sale of such developed land, then it would not involve any service. Application disposed off.

Summary

Issues Involved:
1. Validity of Paragraph 2 of Notification No. 11/2017-Central Tax (Rate) regarding fixed deduction of 1/3rd for land value.
2. Whether the deeming fiction of 1/3rd deduction is ultra-vires the provisions of the GST Acts.
3. Whether the deeming fiction violates Article 14 of the Constitution of India.
4. Relevance of developed versus undeveloped land for GST purposes.
5. Measure of tax and its nexus with the charge of tax.
6. Application of Section 15(5) of the GST Acts.
7. Potential artificial inflation of land value to reduce tax liability.
8. Validity of advance ruling appellate orders based on the impugned notification.

Detailed Analysis:
1. Validity of Paragraph 2 of Notification No. 11/2017-Central Tax (Rate) regarding fixed deduction of 1/3rd for land value:
The court examined whether the mandatory fixed deduction of 1/3rd for land value stipulated in Paragraph 2 of Notification No. 11/2017-Central Tax (Rate) is valid. The court found that the deeming fiction of 1/3rd deduction is arbitrary and does not align with the actual value of land in many cases, leading to discriminatory consequences.

2. Whether the deeming fiction of 1/3rd deduction is ultra-vires the provisions of the GST Acts:
The court held that the mandatory application of the 1/3rd deduction is contrary to the statutory provisions of the GST Acts. Section 15(1) of the GST Acts requires the value of supply to be the transaction value, i.e., the actual price paid or payable. The court emphasized that deeming fiction should only apply where the actual value is not ascertainable.

3. Whether the deeming fiction violates Article 14 of the Constitution of India:
The court found that the deeming fiction of 1/3rd deduction is discriminatory and arbitrary, thus violating Article 14 of the Constitution of India. The court provided illustrations showing how the same construction on different plot sizes leads to different taxable values, which is irrational and discriminatory.

4. Relevance of developed versus undeveloped land for GST purposes:
The court clarified that the sale of land, whether developed or undeveloped, should not be subject to GST. The court emphasized that the GST should only apply to the construction service supplied by the developer at the behest of the buyer. The court rejected the argument that developed land should be treated differently for GST purposes.

5. Measure of tax and its nexus with the charge of tax:
The court reiterated that the measure of tax should have a nexus with the charge of tax. The arbitrary deeming fiction of 1/3rd deduction leads to a measure of tax that does not align with the actual supply of construction services, thus lacking the required nexus.

6. Application of Section 15(5) of the GST Acts:
The court noted that Section 15(5) allows the government to determine the value of certain supplies in a prescribed manner. However, the term "prescribed" means prescribed by rules, not by notification. The court held that even if the government had the competence to issue the notification, the deeming fiction must still align with the statutory provisions and not be arbitrary.

7. Potential artificial inflation of land value to reduce tax liability:
The court acknowledged the concern that parties might artificially inflate land value to reduce GST liability. However, the court pointed out that the GST Acts already provide mechanisms to address such situations through Section 15(4) and the valuation rules (Rules 27-31 of the CGST Rules).

8. Validity of advance ruling appellate orders based on the impugned notification:
The court quashed the advance ruling appellate orders that were based on the impugned notification. The court overruled the objection regarding the maintainability of writ applications against these orders, considering the challenge to the notification itself.

Conclusion:
The court declared Paragraph 2 of Notification No. 11/2017-Central Tax (Rate) ultra-vires the provisions of the GST Acts and violative of Article 14 of the Constitution of India. The court read down the impugned paragraph to make the 1/3rd deduction optional, applicable only when the actual value of land is not ascertainable. The court directed the refund of excess tax collected under the GST Acts to the writ applicant, along with statutory interest. The advance ruling appellate orders based on the impugned notification were quashed.