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TMI Blog2021 (11) TMI 267X X X X Extracts X X X X X X X X Extracts X X X X ..... percentage of the owner/co-owners in the said property. Said submissions made by the applicant is not addressed, in support of being below threshold GST turnover limit due to non-submission of details. Admissibility of entry no. (3) of Notification No. 12/2017-CTR - HELD THAT:- Schedule II of the CGST Act, 2017 sets out the activities which are to be treated as supply of goods or supply of service wherein renting of immovable property is treated as supply of service - in the instant case, the supply of leasing of immovable properties by the applicant is a supply of services - Though the applicant as per her submission is supplying Pure Services, in light of insufficient material on record, it is not possible to find whether the said services are supplied by the applicant by way of any activity in relation to any function entrusted to a Panchayat under article 243G of the Constitution or in relation to any function entrusted to a Municipality under article 243W of the Constitution. The renting of immovable property services by the applicant is not liable for exemption under the provisions of Entry No. (3) Of Notification No. 12/2017-CT(R) dated 28.06.2017. Whether TDS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment), a Department of State Government, then whether TDS notification issued under section 51 would be applicable for deduction of TDS? 4. In case TDS is deducted, whether we would be entitled for refund of the same? The questions raised earlier were as under:- 1. In the instant case, whether the services provided by us to Social Welfare Department (Soma] Kalyan Department) will be liable for TDS under section 51 of CGST Act, 2017? 2. As the Applicant is not registered under GST and provide services to Social Welfare Department (Samaj Kalyan Department), a Department of State Government, then whether TDS notification issued under section 51 would be applicable for deduction of TDS? 3. Whether the small business exemption would be applicable to us based on agreement value or on basis of share each co-owner? 4. In case TDS is deducted, whether we would be entitled for refund of the same? At the outset, we would like to make it clear that the provisions of both the CGST Act and the MGST Act are the same except for certain provisions. Therefore, unless a mention is specifically made to any dissimilar provisions, a reference to the CGST Act would als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T Act. Given the aforesaid, the Applicant is un-registered under CGST Act, 2017. However, Sahayak Ayukt Samaj Kalyan Vibhag is deducting TDS under Section 51 of the CGST Act, 2017. This TDS is resulting into cost for the Applicant. B. Statement containing the Applicant's interpretation of law and/or facts 2.3 The case under consideration is covered under section 51 of the CGST Act, 2017 that is Tax Deducted at Source by the Government. 2.4 As per Section 51(1) of the CGST Act, Tax Deducted at Source has been defined to include all services provided to Government under CGST Act, and the gross value to deduct TDS should be relatively more than 2,50,000 in order to be eligible for deduction of Tax deducted at source. 2.5 According to provisions of section 51 of CGST Act, 2017 read with Section 20 of IGST Act, 2017, a deductor is required to deduct TDS at prescribed rates as CGST and SGST/UTGST (in case of intra-state) on the payment made or credited to supplier w.r.t. procurement of 'taxable goods or services'. 2.6 In terms of provisions of section 22 of CGST Act read with notification issued under IGST Act, the person, who is making intra / inter-stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y held property. 2.13 Further, the decision in the case of M/s. SRI RABI SANKAR TAH [2019-TIOL-418-AAR-GST] Case No. 34 of 2019 wherein; it was held that The Applicant and the other two co-owners cannot be treated as an association of persons and, therefore, as a person defined under section 2(84) of the GST Act, where their income from renting is separately ascertainable and assessed for income tax individually at the hand of each co-owner. Whether the Applicant is required to be registered under section 22(1) of the GST Act will, therefore, depend on his gross turnover, ascertained separately from the other co-owners, exceeding the threshold as provided under the Act. 2.14 Given the aforesaid, TDS is not liable to be deducted in the instant case. ADDITIONAL SUBMISSIONS DATED 08.10.2021:- 2.15 As per the provisions of Notification No 12/2017-Central Tax (Rate) dated 28th June 2017, Pure services (excluding works contract service or other composite supplies involving supply of any goods) provided to the Central Government, State Government or Union territory or local authority or a Governmental authority by way of any activity in relation to any function ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a State may, by law, endow- (a) the Municipalities with such powers and authority as may be necessary to enable them to function as institutions of self-government and such law may contain provisions for the devolution of powers and responsibilities upon Municipalities, subject to such conditions as may be specified therein, with respect to- (i) the preparation of plans for economic development and social justice; (ii) the performance of functions and the implementation of schemes as may be entrusted to them including those in relation to the matters listed in the Twelfth Schedule; (b) the Committees with such powers and authority as may be necessary to enable them to carry out the responsibilities conferred upon them including those in relation to the matters listed in the Twelfth Schedule. 2.20 In this regard, Twelfth Schedule of Constitution of India provides as under: TWELFTH SCHEDULE (Article 243W) 1. 3. Planning for economic and social development 9. Safeguarding the interest of weaker sections of society, including handicapped and mentally retarded 10. 2.21 In the instant case the State Government is taking the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally, Applicant is not entitled for refund of the same. 04. HEARING 4.1 Preliminary e-hearing in the matter was held on 03.12.2020. Shri Pritam Mahure, CA and Shri. Sahli Tharani, CA were appeared, and requested for admission of the application. Applicant was asked to reframe the questions. Jurisdictional Officer was absent. 4.2 The application was admitted and called for final e-hearing on 07.09.2021. Shri Pritam Mahure, CA and Authorized Representative, appeared made oral and written submissions. Jurisdictional Officer appeared and requested for time to make submissions. 4.3 We heard both the sides. 05. OBSERVATIONS AND FINDINGS: 5.1 We have perused the documents on record and gone through the facts of the case and the submissions both oral and written, made by the applicant. The applicant redrafted the questions raised by her vide e-mail dated 27.09.2021. 5.2 The applicant is a co-owner of immovable property situated in Nashik. The details of the plot are mentioned in the subject application. During the course of the hearing the applicant submitted that a building has been constructed on the plots owned by the applicant along with other co-owners an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced as under:- SI.No. Chapter, Section, Heading, Group or Service Code (Tariff) Description of Services Rate (per cent.) Condition (1) (2) (3) (4) (5) 3. Chapter 99 Pure services (excluding works contract service or other composite supplies involving supply of any goods) provided to the Central Government, State Government or Union territory or local authority or a Governmental authority by way of any activity in relation to any function entrusted to a Panchayat under article 243G of the Constitution or in relation to any function entrusted to a Municipality under article 243W of the Constitution. Nil Nil 5.3.6 To answer the query of the applicant regarding the admissibility of entry no. (3) of Notification No. 12/2017-CTR in the subject case we need to find a. whether the subject supply is a supply of Pure Services b. provided to the Central Government, State Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o enable them to carry out the responsibility conferred upon them including those in relation to the matters listed, in the Twelfth Schedule. Twelfth Schedule of the Indian Constitution provides for the following functions (relevant) as under: (1) . (3) Planning for economic and social development (9) Safeguarding the interest of weaker sections of society, including handicapped and mentally retarded Further, Article 243G of the Indian Constitution states as under: Article 243G. Subject to the provisions of this Constitution, the Legislature of a State may, by law, endow the Panchayats with such powers and authority and may be necessary to enable them to function as institutions of self-government and such law may contain provisions for the devolution of powers and responsibilities upon Panchayats at the appropriate level, subject to such conditions as may be specified therein, with respect to - (a) The preparation of plans for economic development and social justice; (b) The implementation of schemes for economic development and social justice as may be entrusted to them including those in relation to the matters listed in the Eleventh Sched ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epartment), a Department of State Government, then whether TDS notification issued under section 51 would be applicable for deduction of TDS? 5.5.2 As discussed above TDS notification issued under section 51 would be applicable for deduction of TDS in the subject case. 5.6.1 The fourth question raised by the applicant in case TDS is deducted, whether applicant would be entitled for refund of the same? 5.6.2 The said question pertains to entitlement of refund and is not covered under Section 97 of the CGST Act, 2017 and therefore we refrain from answering this question. 06. In view of the extensive deliberations as held hereinabove, we pass an order as follows: ORDER (Under Section 98 of the Central Goods and Services Tax Act, 2017 and the Maharashtra Goods and Services Tax Act, 2017) NO.GST-ARA- 96/2019-20/B-86 Mumbai, dt. 02.11.2021 For reasons as discussed in the body of the order, the questions are answered thus - Question 1:- In the instant case, whether the services provided by us to Samaj Kalyan Department, State Government of Maharashtra (Social Welfare Department) for residential accommodation of underprivileged girls is exempt from G ..... X X X X Extracts X X X X X X X X Extracts X X X X
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