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2023 (8) TMI 1567 - 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 for GST exemption on hostel accommodation under Entry 12 of Exemption Notification No. 12/2017-CT (Rate). 2. Determination of tariff heading and rate of taxability for hostel accommodation services. 3. Taxability of in-house food supply as part of a composite supply with hostel accommodation. 4. Admissibility of certain questions under Section 97(2) of the GST Act. Issue-wise Detailed Analysis: 1. Eligibility for GST Exemption on Hostel Accommodation: The primary issue was whether the hostel accommodation provided by the Applicant qualifies for exemption under Entry 12 of Exemption Notification No. 12/2017-CT (Rate) dated 28.06.2017. The judgment clarified that the term "residential dwelling" is not defined under the CGST Act, but under normal trade parlance, it refers to residential accommodation excluding places meant for temporary stay like hotels or hostels. The Applicant's hostel, providing temporary lodging with additional services, does not qualify as a "residential dwelling" for use as residence. The judgment emphasized that exemption notifications should be interpreted strictly, and the Applicant's hostel accommodation does not meet the criteria for exemption as it is commercial in nature and not a residential dwelling. 2. Determination of Tariff Heading and Rate of Taxability: The second issue involved determining the appropriate tariff heading and tax rate for the hostel accommodation services. The judgment concluded that hostel accommodation services fall under Tariff heading 9963 and are taxable at 9% CGST and 9% SGST under Sl. No. 7(vi) of Notification No. 11/2017, Central Tax (Rate), as amended. The judgment distinguished hostels from hotels, noting that hostels provide long-term accommodation with basic facilities, unlike hotels which offer temporary stays with extensive services. 3. Taxability of In-house Food Supply as Part of a Composite Supply: The third issue addressed whether the in-house food supply to hostel inmates is exempt as part of a composite supply. The judgment determined that the hostel accommodation service is the principal supply, and since it is taxable, the entire composite supply, including food services, is taxable at the rate applicable to the principal supply, which is 18%. The judgment noted that the services provided by the Applicant are naturally bundled and supplied in conjunction with each other, fulfilling the criteria for a composite supply under Section 2(30) of the GST Act. 4. Admissibility of Certain Questions Under Section 97(2) of the GST Act: The fourth issue related to the admissibility of certain questions posed by the Applicant. The judgment stated that only Questions 1 to 4 fall within the scope of Section 97(2) of the CGST/TNGST Act, and thus, the application was admissible only for these questions. However, no ruling was issued for Question No. 4 as it did not fall under the scope of Section 97(2) of the GST Act. Ruling: - The hostel accommodation services provided by the Applicant are not eligible for GST exemption under the specified notifications. - The services fall under Tariff heading 9963 and are taxable at 9% CGST and 9% SGST. - The supply of in-house food as part of a composite supply with hostel accommodation is taxable at 18%. - No ruling was issued for the question not falling under Section 97(2) of the GST Act.
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