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2023 (8) TMI 1564 - AAR - GSTEligibility for GST exemption on hostel accommodation services - whether the hostel accommodation being provided by the Applicant to students and working women qualify to be a residential dwelling for use as residence as described in the above entry and thus eligible for exemption or not? - HELD THAT - The term residential dwelling has not been defined either under CGST Act or under Notification No. 12/2017. However under the erstwhile service tax law in paragraph 4.13.1 of the Taxation of Services An Education Guide dated 20.06.2012 issued by the CBIC the expression residential dwelling has been interpreted in terms of the normal trade parlance as per which it is any residential accommodation but does not include hotel motel inn guest house campsite lodge house boat or like places meant for temporary stay. It is clear that the purpose and objective of the notification is nothing but to avoid taxing residential properties taken on rent by family or individuals and the benefit of exemption is not extended to the premises which do not qualify as residential dwelling for use as residence. Further unless the twin conditions of renting of residential dwelling for use as residence being inter-twined and inseparable are not met the exemption is not available. As per settled position in taxation laws especially when exemptions or concessions or benefits are to be availed the interpretation is to be literally and strictly construed and not in liberal terms. In effect the place rented out is neither a residential dwelling nor being rented out for use as residence. It is clear that hostel accommodation is not equivalent to residential accommodation and hence the services supplied by the Applicant would not be eligible for exemption under Entry 12 of Exemption Notification No. 12/2017-CT(Rate) dated 28.06.2017 and under the identical Notification under the TNGST Act 2017 and also under Entry 13 of Exemption Notification No.09/2017-IT(Rate) dated 28.06.2017 as amended. Requirement for GST registration based on turnover - HELD THAT - It is clear that the Applicant s service of providing hostel accommodation is not eligible for exemption under Entry 12 of Exemption Notification No. 12/2017-CT(Rate) dated 28.06.2017 as amended the Applicant is very much be required to take registration under the GST Enactments as the arrangement between the Applicant and the hostel occupants is liable to be classified as transaction in the course of furtherance of business and hence as per Section 7(1)(a) of CGST Act 2017 read with Entry No. 2(b) of the Second Schedule to the CGST Act the said transaction constitutes supply - the Applicant is required to get themselves registered in the state of Tamil Nadu if their aggregate turnover in a financial year exceeds twenty lakh rupees. Taxability and applicable GST rate for hostel accommodation services - HELD THAT - It is observed that hotels are meant for a temporary stay (2-5 days) and have lot of facilities and staff but hostels are used for a longer period and have basic facilities with minimal staff required by the inmates to stay at a reasonable rate. Therefore hostel services cannot be equated to a hotel accommodation and hotel GST rates cannot be applied to a hostel. Therefore the supply of hostel accommodation services (Tariff heading 9963) is taxable @ 9% CGST 9% SGST under Sl. No. 7(vi) of the above Notification (Sl.No. 7 (ix) as per original notification). Tax treatment of in-house food supply as part of hostel services - HELD THAT - The natural bundle has the characteristic of where one service is the main service and the other services are ancillary services which help in better enjoyment of the main service. Further there is a single price for the combined services. The principal activity of the Applicant is supply of accommodation Services. While providing such services the charges are being realised in a consolidated manner for the value of food and other like services rendered. The Applicant has stated that they do not charge separately for the other services provided by them. Thus the services provided by the Applicant are composite in nature - As per Section 8 of the CGST Act 2017 for a Composite supply the tax rate on the principal supply will be treated as the tax rate on the given composite supply. Since the Applicant provides a number of services in a composite manner the hostel accommodation services provided by the Applicant being the principal supply which is taxable @18% will be tax rate for the composite supply provided by them.
Issues Involved:
1. Eligibility of hostel accommodation for GST exemption under specific notification entries. 2. Requirement for GST registration based on turnover. 3. Applicable GST tariff heading and rate for hostel accommodation services. 4. Taxability of in-house food supply as part of composite service. 5. Scope of advance ruling under Section 97(2) of the GST Act. Issue-wise Detailed Analysis: 1. Eligibility of Hostel Accommodation for GST Exemption: The primary issue was whether the hostel accommodation provided by the applicant qualifies for GST exemption under Entry 12 of Exemption Notification No. 12/2017-CT (Rate) dated 28.06.2017. The key question was whether the accommodation qualifies as a "residential dwelling for use as residence." The judgment clarified that the term "residential dwelling" is not defined under the CGST Act, but typically refers to a place used as a home, without including amenities like food or housekeeping. The applicant's hostel, offering accommodation with additional services like food and housekeeping, was deemed more akin to a commercial establishment rather than a residential dwelling. Therefore, it did not qualify for the exemption. 2. Requirement for GST Registration: Since the applicant's service of providing hostel accommodation is not exempt, it constitutes a "supply" under Section 7(1)(a) of the CGST Act. Therefore, if the applicant's aggregate turnover exceeds twenty lakh rupees in a financial year, they are required to register for GST under Section 22 of the GST Acts. 3. Applicable GST Tariff Heading and Rate: The supply of hostel accommodation services falls under Tariff heading 9963, which pertains to "Accommodation, food and beverage services." The applicable GST rate is 9% CGST plus 9% SGST, as per Sl.No. 7(vi) of Notification No. 11/2017, Central Tax (Rate), dated 28.06.2017, as amended. 4. Taxability of In-house Food Supply as Part of Composite Service: The supply of in-house food to hostel inmates was considered part of a composite supply, where the principal supply is the hostel accommodation service. According to Section 8 of the CGST Act, the tax rate applicable to the principal supply (hostel accommodation) applies to the composite supply. Therefore, the composite supply, including food, is taxable at 18%. 5. Scope of Advance Ruling Under Section 97(2) of the GST Act: The fifth question raised by the applicant did not fall within the scope of Section 97(2) of the GST Act, and thus, no ruling was issued on that question. Ruling: 1. The hostel accommodation services provided by the applicant are not eligible for GST exemption under the specified notification entries. 2. The applicant must register for GST in Tamil Nadu if their annual turnover exceeds twenty lakh rupees. 3. The applicable tax rate for hostel accommodation services is 18% (9% CGST + 9% SGST). 4. The supply of in-house food is part of a composite service, taxable at 18%. 5. No ruling was issued for the fifth question as it was outside the scope of the advance ruling provisions.
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