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TMI BlogMAINTAINABILITY OF ADVANCE RULING APPLICATIONSX X X X Extracts X X X X X X X X Extracts X X X X ..... MAINTAINABILITY OF ADVANCE RULING APPLICATIONS - By: - Mr. M. GOVINDARAJAN - Goods and Services Tax - GST - Dated:- 16-10-2018 - - An application for Advance Ruling is to be filed in Form GST ARA -1 . The application shall be made on the common portal. A fee of ₹ 5000/- is to be deposited for filing Advance Ruling. The fee shall be paid by internet banking or by using credit or debit cards or National Electronic Fund Transfer or Real Time Gross Settlement or by such other mode and subject to such conditions and restrictions as may be prescribed, shall be credited to the electronic cash ledger of such person to be maintained in such manner as may be prescribed. The application shall state the question on which the Advance R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulings is sought. The Authority for advance ruling constituted under the provisions of a State Goods and Services Tax Act or Union Territory Goods and Services Tax Act shall be deemed to be the Authority for advance ruling in respect of that State or Union territory. Section 97(2) of the Act provides the questions on which the Advance Rulings may be sought as under- classification of any goods or services or both; applicability of a notification issued under the provisions of this Act; determination of time and value of supply of goods or services or both; admissibility of input tax credit of tax paid or deemed to have been paid; determination of the liability to pay tax on any goods or services or both; wheth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er applicant is required to be registered; whether any particular thing done by the applicant with respect to any goods or services or both amounts to or results in a supply of goods or services or both, within the meaning of that term. Section 98 provides that on receipt of an application, the Authority shall cause a copy thereof to be forwarded to the concerned officer and, if necessary, call upon him to furnish the relevant records. Where any records have been called for by the Authority in any case, such records shall, as soon as possible, be returned to the said concerned officer. T he Authority may, after examining the application and the records called for and after hearing the applicant or his authorized representative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the concerned officer or his authorized representative, by order, either admit or reject the application. 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 under any of the provisions of this Act. No application shall be rejected under this sub-section unless an opportunity of hearing has been given to the applicant. Where the application is rejected, the reasons for such rejection shall be specified in the order. The maintainability of the application is nothing but the admission of the application by the Authority to decide the question sought by the applicant for advance ruling. There are various factors for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the non maintainability of applications. In this article the same are discussed with reference to the decisions of the various Advance Ruling Authority. Territorial jurisdiction The Authority is to have territorial jurisdiction. If it is not having jurisdiction, it is possible for the application to be rejected as non maintainable. In re Hindalco Industries Limited 2018(10) TMI 304 ARA, UP , the Authority held that as the registered persons are outside the territorial limits of State of Uttar Pradesh, the present application is outside the scope of Jurisdiction - the present Advance Ruling application is dismissed as not maintainable. Out of the purview of Section 97(2) Section 97(2) prescribes the questio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns that are to be dealt with by the Authorities. The list in the said section is exhaustive. Therefore any question falling beyond the scope beyond section 97(2) will not be entertained by the Authority. In re Fitchner Consulting Engineers (I) Private Limited 2018 (9) TMI 692 ARA, Tamil Nadu , the Applicant is an Engineering consultancy organization, providing Engineering Services, mainly Design and Drawings to power and other projects, operating from Chennai and Bengaluru. The question for Advance Ruling is whether CGST SGST or IGST is payable on the said supply. i.e., whether the transaction is an inter-state supply or intra-state supply? The Authority held that Section 97 of the CGST Act and Tamil Nadu GST ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act (TNGST) has given the scope of Advance Ruling Authority, i.e., the question on which the Advance Ruling can be sought. Apart from list provided in Section 97(2) , no other issue can be decided by the Advance Ruling Authority and therefore the Acts limit the Advance Ruling Authority to decide the issues earmarked for it under Section 97(2) . The Application is therefore rejected without going into the merits of the case, on the issue of lack of jurisdiction. In re Lambda Therapeutic Research Limited - 2018 (10) TMI 303 ARA, Gujarat, the applicant has requested for determination as to whether the activities provided by the applicant will be treated as export of service under the provision of the Integrated Goods and Servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces Tax Act, 2017 and will consequently fall under zero rated supply as per Section 16 of the IGST Act, 2017 . The issue whether the activity of the applicant provided to foreign clients towards scientific testing and technical analysis services on pharmaceutical products which are supplied by an entity situated outside India would be treated as export of service under the provisions of the IGST Act can be determined in light of various provisions of the IGST Act, 2017 including Section 2(6) which defines export of services - Thus, one of the important requirements of supply of any service to be treated as export of service is that the place of supply of service is outside India. The entire issue is intrinsically rela ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted to determination of place of supply of service by the applicant. The Authority held that the authority is a creature of statute and has to function within the legal boundary mandated by the Act. As the place of supply is not covered by Section 97(2) of the Acts , this authority is helpless to answer the question raised in the application, as it is lacking jurisdiction to decide the issues. The jurisdiction of this authority does not extend to the questions on determination of place of supply . The Authority rejected the application. In re Kandla Port Trust (Deenadayal Port Trust) 2018 (10) TMI 448 ARA , Gujarat , the fact of the case is as follows- The applicant owns substantial amount of land at Gandhidham ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Adipur location of Kutch District, which has been given on lease to various commercial and other organization for long time period, for which it had entered into lease agreements with various lessees long ago. The applicant revised rate of lease as per directions of Tariff Authority of Major Port, however, many lease holders have challenged the revised rate taking plea that it is against the terms of lease agreement. Some of the lessees are Government of India undertaking and the matter is under litigation at various jurisdictional levels. The applicant is paying GST as per invoices (revised rate) issued out of pocket, though no payment of lease rent and GST is being made by lease holders for disputed amount. There is less ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... probability of settlement of dispute in definite time span and at present crores of rupees have been blocked with respect of GST payment of disputed claims. The applicant sought for the advance rulings as follows- Whether the applicant shall continue to pay GST on disputed claim? How is it possible for DPT to claim refund for GST paid out of pocket, if the matter / dispute concluded in favor of party / lease holder, considering the fact that it may conclude after period of 2 or more years? The Authority held that the issues raised by the applicant do not fall in the category of Section 97(2) of the Acts . Whether the applicant shall continue to pay GST on disputed claims do not require determination of any issue enumer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated under Section 97(2) of the Acts . Further, the issue of refund claim in case of conclusion o dispute after more than 2 years is also not covered by Section 97(2) of the Acts. The jurisdiction of the authority does not extend to the questions on determination of these issues. Pending proceedings Section 98(2) of the Act provides that 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 under any of the provisions of this Act In re Mosaic India Private Limited - 2018 (9) TMI 478 ARA Maharastra , the Authority held that in view of admission by the applicant at the time of Personal Hearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that in the present GST regime also, their import consignments have been provisionally assessed for classification and accordingly, applicability Of Customs duty and IGST on the same, their application is liable for rejection as per proviso to section 98 (2) of the CGST Act and therefore cannot be entertained by this authority and is accordingly rejected. In re Veeram Natural Products 2018 (9) TMI 697 ARA, Tamil Nadu , the question sought for by the applicant for getting advance rulings is What is the appropriate classification for Aluminum foil disposable container manufactured by them under GST? . The Authority held that it is seen that the ruling is sought on the appropriate classification for Aluminium foil disposable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... container, which is already raised in the Show Cause Notice issued by the Department under the GST law and the proceedings are still pending - as the question raised by the applicant in the application is already pending proceedings, in the case of the applicant themselves, the application is not admissible under the said provisions and therefore liable for rejection. In re Dr. Dathu Rao Memorial Charitable Trust 2018 (9) TMI 698 ARA, Tamil Nadu, the applicants are engaged in activities related to providing of education to Mentally Retarded Children. They have preferred an application seeking Advance Ruling on the following question. Since they are coming under exempted category, as per GST provisions, are they, liable t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o pay GST for the materials bought and construction services availed. The Advance Ruling sought is whether the Trust is liable to pay GST on receipt of Goods/Services, when the Charitable Trust is exempted under the GST Act 2017 . It is made clear that the applicant does not make any of the supplies in question, but are in fact the recipients of the various supplies as stated in their application. Thus, the question is on the liability to pay tax on their purchase and not on the supply. The Authority held that an applicant can seek an Advance Ruling Authority in relation to supply of goods or services or both undertaken or proposed to be undertaken by the applicant. In the case at hand, the applicant is the proposed recipient of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e proposed works contract and accordingly, does not fall within the definition of advance ruling. Hence, the Application is not liable for admission and therefore rejected without going into the merits of the case, on the issue of lack of jurisdiction. The application is not admitted, under sub-section (2) of section 98 of the CGST Act, 2017 and the TNGST Act, 2017 . In re Sterlite Technologies Limited 2018 (9) TMI 975 ARA, Maharashtra , the applicant, seeking an advance ruling in respect of the following questions- Whether the Applicant is required to separately discharge GST on the excess length of OF although the cost of such excess length is already included in the price charged to independent customers? Whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther the Applicant is required to separately discharge GST on the excess length of Optical Fibre although the cost of such excess length is already included in the price charged to distinct persons in terms of Schedule I provisions? If GST is not payable separately on the excess length, whether the Company is required to reverse proportionate credit to the extent of supply such excess length? The jurisdictional officers have raised the objection with regard to admission of this advance ruling application and requested that it is to be rejected as the same issue is pending before the investigation authority on the same questions as raised in the application put forth before ARA Authority. The Authority held that the application fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the applicant is not maintainable as per the provisions of Section 98 of the CGST Act, as proceedings are already initiated against them before the filing of their present application. Other grounds In re Ramway Foods Limited 2018 (10) TMI 343 ARA, UP , the Authority held that the applications for the advance ruling should be directly related to applicant in respect of supply of goods or services. In the instant case applicant is a recipient of goods and not the supplier or manufacturer of said goods. Since the applicant has sought question which is directly related to supplier of goods, the above said ruling does not appears to be applicable in instant case. Conclusion From the above discussions with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reference to decided case laws by the Advance Ruling Authorities it can be inferred that before application for an advance ruling before the respective authority it is to be ascertained whether the Authority is having jurisdiction over the issue and the question for which advance ruling was sought is falling under any one of the questions enumerated in section 97(2) of the Act and whether any case is pending in any Forum/Authority before filing application for Advance rulings. - - Scholarly articles for knowledge sharing authors experts professionals Tax Management India - taxmanagementindia - taxmanagement - taxmanagementindia.com - TMI - TaxTMI - TMITax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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