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TMI Blog2019 (10) TMI 1188X X X X Extracts X X X X X X X X Extracts X X X X ..... ntracts provided that in certain cases, the due date of payment is periodical, either monthly or annually, with the due dates specified after the end of such period. If the rent invoice is issued before the due date of payment, the Time of supply is determined by Section 13(2) (a), as the earliest of the date of issue of invoice by the supplier and the date of receipt of payment. If payment is not received for any reason, including legal disputes, the time of supply shall be date of issue of invoice. If the invoice is issued after such due date of payment, the Time of supply is determined by Section 13(2) (b), as the earliest of the date of provision of service which is the end of the period (monthly/annual etc.) specified in the contract and the date of receipt of payment, whichever is earlier. If payment is not received for any reason, including legal disputes, the time of supply shall be the date of provision of service which is the end of recurrent period specified in the agreement after which the rent/license fee is to be paid. The time of supply in cases where instead of receiving the full consideration, they only get a partial amount as payment - HELD THAT:- In these c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the applicant asking for license fee by initiating legal dispute before the legal forums like arbitration, court etc., as provided in the license agreement; but pays under protest adhoc amounts which are part of periodical license fee payable by him under the expired license agreement. The Applicant has submitted the copy of applications in Form GST ARA - 01 and also submitted the copy of Challans evidencing payment of Application Fees of ₹ 5, 000 per application - each under Sub-rule (1) of Rule 104 of CGST Rules 2017 and SGST Rules 2017. The applications filed by the applicant are taken up together for consideration and passing of Rulings. 2. The Applicant has stated that they are engaged in supply of port services and incidental supply of goods like disposal of discarded assets. They are notified as a major port by the Central Government under Section 3(8) of Indian Ports Act 1908 r.w.s. 2(m) of Major Port Trusts Act, 1963 vide notification No. GST (E) dt 01.02.1975. The affairs of the applicant are administered by a Board constituted by the Central Government from time to time ns per the provisions of Major Port Trusts Act, 1963. The applicant is funct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is issued on or before the due date of payment as ascertainable from the Contract u/s 31(5) (a); - not possible since the due date of payment is not ascertainable from the contract, which is a pre-requisite for the fact that the contract, namely license agreement which is expired and not in force. They do not issue invoice even in cases where the license agreement is in force, but issues only periodical claim letters which cannot be considered as invoice as required u/S 31. Even if the invoice is issued by them, the licensees refuses to recognize the invoices of the assessee and as well refuse to (1) pay at least the GST portion; or (2) take credit and reverse immediately as provided in 2nd and 3rd proviso to Section 16(2), for fear of losing the ongoing dispute, litigations with them. Consequently, determination of TOS on raising of periodical invoices before receipt of payment will lead to anomalous situation where they pay GST to Government, but which is not availed as ITC by the licensee/service receiver which is otherwise can be availed by them thereby results in cascading effect which is opposed to the very ITC scheme of GST v. The date of issue of invoice by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and on account of change in the SGST Member of the authority, another personal hearing was extended on 22.02.2019. The applicant appeared through their Authorized Representative and stated as follows: In respect of the renting of immovable property, they will provide category-wise details of date of invoice, payments received, provision of service dates in a typical license /contract of renting to decide on the time of supply. The applicant undertook to submit the documents in 2 weeks. The State jurisdictional officer appeared and submitted written comments on the ARA. 5.2 The applicant did not furnish the documents as undertook by them. However, in the interests of natural justice, the applicant was addressed to furnish the documents vide letter dated 09.04.2019. The applicant vide their letter dated 21.05.2019, furnished the following documents: Rent Claim Advice pertaining to M/s. Indian Oil Corporation Ltd. 6. The remarks of the State Jurisdictional Officer on the questions raised by the applicant in the ARA application are detailed below: Though the agreement entered upon with the licensee is not renewed it is the duty of the applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur with respect to providing continuous supply of services in the nature of renting immovable properties in the following 4 situations i. The licensee does not react to the periodical reminder letters issued by the applicant and also does not pay the monthly license fee to the applicant. ii. The licensee disputes amount of license fee the periodical reminder letters issued by the applicant by means of reply letters and also does not pay the periodical license fee to the applicant. iii. The Licensee disputes the periodical reminder letters issued by the applicant asking for license fee by initiating legal dispute before the legal forums like arbitration, court etc., as provided in the license agreement and does not pay the periodical license fee to the applicant; and iv. The licensee disputes the periodical reminder letters issued by the applicant asking for license fee by initiating legal dispute before the legal forums like arbitration, court etc., as provided in the license agreement; but pays under protest adhoc amounts which are part of periodical license fee payable by him under the expired license agreement. 8.1 Section 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (c) the date on which the recipient shows the receipt of services in his books of account, in a case where the provisions of clause (a) or clause (b) do not apply: Provided that where the supplier of taxable service receives an amount up to one thousand rupees in excess of the amount indicated in the tax invoice, the time of supply to the extent of such excess amount shall, at the option of the said supplier, be the date of issue of invoice relating to such excess amount. Explanation .- For the purposes of clauses (a) and (b)- (i) the supply shall be deemed to have been made to the extent it is covered by the invoice or, as the case may be, the payment; (ii) the date of receipt of payment shall be the date on which the payment is entered in the books of account of the supplier or the date on which the payment is credited to his bank account, whichever is earlier Section 31, which is as below: 31. (2) A registered person supplying taxable services shall, before or after the provision of service but within a prescribed period, issue a tax invoice, showing the description, value, tax charged thereon and such other par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into account discount or abatement, if any; (l) rate of tax (central tax, State tax, integrated tax, Union territory tax or cess); (m) amount of tax charged in respect of taxable goods or services (central tax, State tax, integrated tax, Union territory tax or cess); (n) place of supply along with the name of the State, in the case of a supply in the course of inter-State trade or commerce; (o) address of delivery where the same is different from the place of supply; (p) whether the tax is payable on reverse charge basis; and (q)signature or digital signature of the supplier or his authorised representative: Rule 47 of the CGST/TNGST Rules 47. Time limit for issuing tax invoice.- The invoice referred to in rule 46, in the case of the taxable supply of services, shall be issued within a period of thirty days from the date of the supply of service: 8.3 In view of the above, we take up the question before us In respect of continuous supply of service when the license is in effect , as per Section 31(5), the tax invoice, containing the details as per Rule 46 of CGST/TNGST Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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