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TMI Blog2020 (12) TMI 1305X X X X Extracts X X X X X X X X Extracts X X X X ..... liable to be rejected as per the proviso of section 98(2) of CGST Act. - Order No. 20/2020, Case No. 14/2020 - - - Dated:- 10-12-2020 - SHRI MANOJ KUMAR CHOUBEY AND SHRI VIRENDRA KUMAR JAIN, MEMBER Present on behalf of applicant : Shri Amit Sheode, Authorized Representative PROCEEDINGS (Under sub-section (4) of Section 98 of Central Goods and Service Tax Act, 2017 and the Madhya Pradesh Goods Service Tax Act, 2017) 1. The Applicant Saisanket Enterprises (hereinafter referred to as the Applicant) is a Works Contractor engaged in executing irrigation related works contracts. The Applicant is duly registered under the CGST/SGST Act in various states. In the State of Madhya Pradesh {MP) the Applicant is registered holding GSTN 23AFYPM0856KIZW. 2. The provisions of the CGST Act and MPGST Act are identical, except for certain provisions. Therefore, unless a specific mention of the dissimilar provision is made, a reference to the CGST Act would also mean a reference to the same provision under the MPGST Act. Further, henceforth, for the purposes of this Advance Ruling, a reference to such a similar provision under the CGST or MP GST Act would be mentioned as be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... local authority or a authority by way of construction, erection, commissioning, installation, completion, fitting out, repair, maintenance, renovation, or alteration of- (a) a civil structure or any other original works meant predominantly for use other than for commerce, industry, or any other business or profession; (b) a structure meant predominantly for use as Man educational, (ii) a Clinical, or (iii) an art or cultural establishment; or (c) a residential complex predominantly meant for self-use or the use of their employees or other persons specified in paragraph 3 of the Schedule 111 of the Central Goods and Services Tax Act, 2017, 3.4 On 25-01-2018 w.e.f. from 25.01.2018 few more entries were added to the above list in notification 11/2017 namely entry (ix) that runs as under: ix) Composite supply of works contract as defined in clause (119) of section 2 of the Central Goods and Services Tax Act, 2017 provided by a sub-contractor to the main contractor providing services specified in item (iii) or item (vi) above to the Central Government, State Government, Union territory, a local authority, a Governmental Authority or a Governmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of powers u/s 67 in the present facts does not entail any intelligence activity, in the respectful submission of applicant. For the aforesaid reasons the applicant respectfully submits that there is no proceeding pending against the applicant on which a Advance Ruling is sought. Even if one was to assume, that the proceeding amounts to a proceeding within the meaning of proviso to Section 98(2), the applicant submits that the issue raised in the present Advance Ruling falls outside the ambit of Section 67(1) /or mere issue of letters for payment of differential tax does not amount to a proceeding, such as is contemplated by proviso to Section 98(2) to prohibit the applicant from seeking the Advance Ruling. 3.8 The issue of parity In the rate of tax to be applied to sub contractors where their principal contractors are enjoying concessional rate of tax has been favourably decided by the GST Council in its 25th Council in favour of the Sub contractors consequently notification no. 11/2017 was amended clause (ix) reproduced at Para no 5 above was inserted with effect from 25-01-2018, It may be noted that the Council did not deliberate on whether to give a prospective effect o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 018 when the rate on such contracts were notified by Government. 2. It is an undisputed fact that the DGGSTI lndore has conducted a search at the premises of the applicant on or around March 2020. It is also not disputed that the said authority has issued a letter to the applicant demanding tax @ 18% on the turnover during the period July 2017 to Jan 2018 on the sub contract concerning the Narmada Authority. On the other hand it is the contention of the applicant that the rate of tax of a sub contractor in a Government contract is pari passu to that of the principal contractor. It is on the said contract for the aforesaid period that the applicant is seeking advance ruling. 3. Proviso to Section 98(2) bars an application to the Advance Authority in respect of any matter where the question raised before the Advance Ruling Authority is pending in any proceeding under the GST Act. The DGGSTI has purportedly commenced proceedings u/s 67 of the GST Act. It is the humble submission of the applicant that the present question raised is a pure question of law hence cannot form subject matter of any proceedings that is commenced u/s 67 of the GST Act for the following amongst oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umpteen number of decisions of the Hon'ble SC. As per Article 141 of the Constitution of India law laid down by the Hon'ble SC is legally binding on all lower authorities not only Judicial but also quasi judicial as well as Administrative. The applicant hereby relies on the above principle as laid down in the Hon ble SC verdict in the matter of Kavalapprara Kottarathil Kochuni vs State of Madras (AIR 1960 SC 1080 Page 1103-1960 (3) SCR 887) To quote the Hon'ble SC it laid down that The rule is that when general words follow particular and specific words of the same nature, the general words must be confined to the things of the same kind as those specified. Hut it is clearly laid down by decided cases that the specific words must form a distinct genus or category. It is not an inviolable rule of law, To further explain why the above rule is applied the Hon'ble SC in Tribhuvan Prakash Nayyar vs Union of India (AIR 1970 SC 540; Pg 545 (1969 3 SCC 99) laid down This Rule which is known as the Rule of Ejusdem Genereis reflects an attempt to resolve the incompatibility between the specific general words in view of the other rules of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 67 are phony a colourable exercise of its powers. Therefore there is no conflict, apparent or otherwise between the proceedings u/s 67 this application because the question raised in this application is not covered by Section 67 hence the bar laid down in Section proviso to 98(2) does not apply in the present matter to prevent the applicant from seeking reply on the question or allowing the AAR to decide the issue involved. The applicant relies on the following judgments of the Hon'ble SC that have judicially accepted the above rule of interpretation has applied it laid down the same as a ratio to be followed by lower authorities. 1. Thakur Amarsinghji vs State of Rajasthan (AIR 1955 SC 504 at page 523) 2. Housing Board of Haryana vs Haryana Housing Board Employees Union (AIR 1996 SC 434 at page 441) 3. State of Karnataka vs Kempaiah (AIR 1998 SC 3047 at page 3050) 4. Lokmat Newspapers P Ltd vs Shankar Prasad (AIR 1999 SC 2423 at page 2444) 5. Grasim Industries vs Collector of Customs (AIR 2002 SC 1766 at page 1710) Alternatively without prejudice to the contentions made hitherto, the applicant says submits that in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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