9911796707
TMI Blog2021 (12) TMI 145X X X X Extracts X X X X X X X X Extracts X X X X ..... t is against the fundamental principles established by various Hon'ble Courts based on their interpretations of the various statutes. Therefore, the question proposed before the Advance Ruling Authority is not whether the liability exists or not, but whether such a liability is valid/sustainable or not. That is not within the purview of Advance Ruling Authority to decide. This Authority is of the view that based within the meaning of Section 97 of the GST Acts, an application for Advance Ruling can only be made to determine the liability to pay tax on any goods or services or both. The Applicant himself accepts that the liability as per the notification comes under RCM. but the Tax has been paid on forward charge. The main stress is on the point of double taxation. Therefore, no application can be made to determine whether the liability is justified / valid or not or whether it shall amount to double taxation or not. The current application is not covered within the scope of Section 97 of the CGST Act and thus, the Advance Ruling Authority cannot comment upon the question put forth before them under the said provisions. The application is therefore disposed of as such. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urisdictional officer (SGST) appeared for personal hearing through virtual hearing. Mr. Adiyta reiterated the submissions already made in the application, and attached additional submissions as follows: 6.2. Government of India, vide notification no. 29/2018 Central Tax (Rate) dated 31.12.2018 has notified security services provided to a registered person to be taxable under Reverse Charge Mechanism with effect from 01.01.2019. 6.3 BSDS is an organization with government setup and the top officials are generally appointed by the Govt on deputation. These top officials are not experts in taxation and accounting fields. To overcome this handicap, BSDS had appointed tax consultants and internal auditors for its operations. None of the appointed agencies conveyed the applicability of the amendment to BSDS management. 6.4The security service providers also did not convey the change regarding the applicability of Reverse Charge on services provided by them and kept on issuing tax invoice for the same instead of bill of Supply and displaying CGST and SGST on the invoice by contravening Section 31 of the CGST Act, 2017. We paid for the taxes amount charged by the supplier. 6. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the recipient. Similar view has been affirmed in Income tax Act, 1961 also vide proviso to section 201 where payer shall not be treated as Assessee in default in case for not deducting tax, if payee has furnished return of income taking into account such sum for computing income in such return of income and has paid the tax due on the income declared by him in such return of income. Thus, the requirement of payment of tax by the recipient when the tax was paid by the supplier (though it was required to be paid by the recipient) for bona fide reasons, liability should not arise on the Recipient. This must not cast additional liability on the recipient of services and the recipient should also be entitled to take credit of such tax. In cases where the service provider himself charges tax and remits the same to the Government, then service receiver is not liable to pay tax again to prevent double taxation. At the time of hearing this authority asked to clarify how the application comes under purview of section 97(2) of GST Act. In response the Application replied that the Application comes under section 97(2) (e) i.e. determination of the liability to pay tax on any goods or se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... termination of liability to pay tax'. This category is not specifically defined, and neither is it clearly mentioned anywhere in the Act as to what constitutes a valid question within the meaning of this category. It is therefore pertinent to establish that if the question is to determine the liability to pay tax, it is appropriate to first judge if the question proposed before the Advance Ruling Authority is in fact falling under the said category in terms of common parlance. 5. From the principal assertions put forth by the applicant in their application, it appears that the levy of GST on reverse charge basis on security services is being challenged on the grounds that doing so would tantamount to double taxation. 6. While the question proposed before the Authority is whether the liability to pay tax exists or not, the applicant himself is not denying the existence of such a liability. The only assertion is whether the existence of such a liability creates irregularities in respect of tax laws outside the limited applicability of the GST Acts. In other words, the existence of such a liability is not being challenged by the applicant in the current application, rather t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
