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TMI Blog2019 (12) TMI 1242X X X X Extracts X X X X X X X X Extracts X X X X ..... 25.07.2019 is evidently belated by 77 days. The appellant, however, has not explained the reason for the delay in filing the appeal - Notwithstanding this fact, the question whether this Appellate Authority can entertain an appeal under Section 100 of the CGST Act beyond the period of 60 days does not require much debate and has been answered in the negative by the Supreme Court in the case of Singh Enterprises vs CCE [2007 (12) TMI 11 - SUPREME COURT ] - The Supreme Court in the said case interpreted Section 35 of the Central Excise Act, 1944 which is similar to Section 100 of the CGST Act and examined the question whether the Commissioner (Appeals) has the power to condone the delay beyond the period of 30 days from the date of expiry of the period of 60 days prescribed for filing the statutory appeal and also whether the High Court, in exercise of the power conferred under Article 226 of the Constitution of India, can condone the delay. This Appellate Authority being a creature of the statue is empowered to condone a delay of only a period of 30 days after the expiry of the initial period for filing appeal - As far as the language of Section 100 of the CGST Act is concerned, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s having identified customers before GST regime. b) Applicability of GST on partially completed flats. where customers are identified after implementation of GST regime. c) Applicability of GST on partially completed flats where no customers are identified. 2. On examination of the issue, the Karnataka Authority for Advance Ruling vide Order No KAR ADRG No 16/2019 dated 25.07.2019 = 2019 (8) TMI 472 - AUTHORITY FOR ADVANCE RULING, KARNATAKA . gave a ruling on the above three questions as follows: a) In respect of partially completed flats having identified customers before GST regime, the Applicant is liable to pay service tax under the Finance Act, 1994 proportionate to the services provided up to 30.06.2017 and from 01.07.2017 onwards, liable to pay GST proportionate to the services provided effective from 01.07.2017, in terms of Section 142 (11)(b) of the CGST Act 2017. b) In respect of partially completed flats, where customers are identified after implementation of GST, the applicant is liable to pay GST on the transaction value of supply. c) In respect of partially completed flats where no customers are ide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . They further submitted that the term works contract starts with the expressions means a contract for building, construction. The term contract is not defined under GST Law. As per section 2(h) of The Indian Contract Act. 1872. contract means an agreement enforceable by law . As per section 2(e) of The India Contract Act. 1872 the word agreement means every promise and every set of promises, forming the consideration for each other 3.4. The Appellant submitted that, in the aspect of law, a contract is a legally binding agreement between two or more parties. Therefore, one of the essential elements of contract / agreement is there must be two or more persons are required. Applying the same principle, an activity of building or construction amounts to works contract only when there is a contract. In other words, there should be person to whom work is executed. If work is executed without being a person, such activity does not ail under the definition of works contract . 3.5. In support of this the Appellant relies on the Hon ble Apex Court decision in the case of K. Raheja Development Corporation Vs State of Karnataka [2005] 141 STC 298 = 2005 (5) TMI 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing the levy of tax on advances, the Heel)le High Court held that, section 7 of the KVAT Act, which creates a legal fiction that a transaction of sale is completed for the purposes of the Act when payment is received as advance is akin to bringing to tax an agreement to sell goods, even before the property in the goods passes to the buyer. This is plainly contrary to the very definition of sale under the Act itself. Therefore, to the said extent, the above said provisions are unconstitutional . 3.9. In view of the above decisions, they submitted that there cannot be any levy of tax on the transactions which does not fall under the definitions of sale or works contract ; that in their case, where work was executed before identifying the customers, cannot be construed as works contract , therefore levy of tax on such portion of work, runs contrary to the definition of works contract as defined under section 2(119) of the Act. 3.10. The Appellant therefore prayed that the impugned order wherein it was clarified that the Appellant is liable to pay tax on entire value on partially completed flats where customers are identified under GST regime, but work co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause from presenting the appeal within the said period of thirty days, allow is to be presented within a further period not exceeding thirty days. (3) Every appeal under this section shall be in such form, accompanied by such fee and verified in such manner as may be prescribed. 9. On a plain reading of the provisions of Section 100 of the said Act, it is apparent that the same mandates that an appeal should be filed within 30 days from the date of communication of the advance ruling order that is sought to be challenged. However, in view of the proviso thereto. the Appellate Authority is empowered to allow the appeal to he presented within a further period of 30 days if it is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the initial period of 30 days. Thus, the Appellate Authority is empowered to extend the period for filing an appeal for a further period of 30 days and no more. in other words. the total limitation period during which an appeal can be preferred before this Authority is 60 days from the date of communication of the advance ruling order, on showing sufficient cause. The proviso does not mean t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithin 60 days but in terms of the proviso farther 30 days time can be granted by the appellate authority to entertain the appeal. The proviso to sub-section (1) of Section 35 makes the position crystal clear that the appellate authority has no power to allow the appeal to he presented beyond the period of 30 days. The language used makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning delay only up to 30 days after the expiry of 60 days which is the normal period for preferring appeal. Therefore, there is complete exclusion of Section 5 of the Limitation Act. The Commissioner and the High Court were therefore justified in holding that there was no power to condone the delay after the expiry of 30 days period. 11. Section 5 of the Limitation Act, 1963 gives an opportunity to a litigant to file applications beyond the prescribed period of limitation provided. he is able to establish that he was prevented by sufficient cause from approaching the Court within the said period. However, the Supreme Court in the case of Consolidated Engineering Enterprises vs Principal Secretary, Irrigation Department and Others ..... X X X X Extracts X X X X X X X X Extracts X X X X
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