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TMI Blog2022 (11) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... 20 [ 2022 (1) TMI 385 - SC ORDER] , wherein, the Hon ble Apex Court has ordered for extension of period of limitation due to COVID-19 led adverse circumstances - in view the decision of Hon'ble Court, since the impugned order was served on 12.02.2022 to the Appellant, as admitted by the Appellant in their appeal, (though in the appeal form GST ARA-2, it is written as 12.01.2022), the last date for filing an appeal would have been 30.05 2022. Further, even if the added benefit of proviso to sub-section (2) of Section 100 of CGST Act is extended to the Appellant, by considering that the Appellant was prevented by a sufficient cause from presenting the appeal within the normal period and a further period of 30 days were allowed, even then the last dale of filing appeal would be 29.06.2022. Therefore, in any foreseeable case, the last date for filing of appeal under law in the instant case was 29.06.2022. No appeal was filed by the Appellant till that date and it was finally filed only on 07.07.2022. The appeal filed by the Appellant is not admissible in eye of law - Appeal dismissed on the ground of limitation itself without going into the merits of the case. - SHRI ASHISH ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red for 'Civil and Interior Works' as mentioned above in building located at C-32, Sector-62, Noida, Gautam Buddha Nagar, Uttar Pradesh at different floors, since the property is further used for letting out to different tenants on rental basis viz, for furtherance of business? (b) Whether ITC on construction of commercial complex will be available to Appellant in case the said building will be used for the purpose of renting out ? A.5 The Authority for Advance Ruling vide Advance Ruling No. UP ADRG 90/2021 dated 17.12.2021 have pronounced that the Appellant is not eligible to take input tax credit. Being aggrieved by the aforesaid ruling the Appellant has preferred an appeal before the Authority for Advance Ruling on the following grounds. (B) Grounds of appeal submitted by the appellant Being aggrieved by the aforesaid ruling, the Appellant has preferred instant appeal passed by the Authority for Advance Ruling, as the Authority vide its Impugned Ruling (a) has denied the eligibility of the Appellant in terms of clause (c) and clause (d) of Section 17 (5) of CGST Act, 2017 which restricts ITC in respect of works contract services and goods and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he invoice or debit note referred to in clause (a) has been furnished by the supplier in the statement of outward supplies and such details have been communicated to the recipient of such invoice or debit note in the manner specified under Section 37; b) he has received the goods or services or both; c) subject to the provisions of section 41, the tax charged in respect of such supply has been actually paid to the Government, either in cash or through utilization of ITC admissible in respect of the said supply; and d) has furnished the return under Section 39; . B.6 Restrictions imposed on availment of ITC under Section 17(5) of the CGST Act, 2017- (5) Notwithstanding anything contained in sub-section (1) of the Section 16 and section (1) of section 18, input tax credit shall not be available in respect of the followings; namely:- (c) Works Contract Services when supplied for construction of an immovable property (other than plant and machinery) except where it is an input service for further supply of works contract service; (d) Goods or services or both received by a taxable person for construction of an immovable p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 2 (17) of the CGST Act, 2017 and said activities/services are in course of furtherance of business. C. Input Tax Credit on the construction of commercial complex: C.1 The Appellant has submitted that they are planning to undertake construction of Commercial Complex in future for the purpose of renting it out to the customers and wishes to know the availability of input tax credit of the GST paid for construction of commercial complex. C.2 Appellant submits that construction of Commercial Complex for the purpose of letting it out on rent is covered under the definition of 'supply' as provided under Section 7 read with paragraph 2(b) of Schedule II of CGST Act, 2017 and they are covered under definition of supplier as per Section 2 (105) of CGST Act, 2017. C.3 Appellant submits that in the case of construction of Commercial Complex for the purpose of letting it out on rent to the customers, the supply chain is not broken instead results into a fresh stream of GST revenue to Government as the rental income would be taxable under GST. C.4 Appellant submits that in case the benefit of ITC under Section 16 of CGST Act is denied to then- by invoking Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uling that they are not eligible for claim of ITC on the stated matters. D.2 An appeal against the advance ruling order issued under Section 98 (6) shall made by an applicant on the common portal in form GST ARA-02 and shall be accompanied by a fee of Rs. 10000/- in the manner specified under section 49 of the act. D.3 The Appellant were not able to file an appeal before the Appellate Authority for Advance Ruling as order was not uploaded on portal and status reflected as pending for order'. And they had filed a letter vide mail dated 11.02.2022 followed by a reminder mail dated 08.03.2022 requesting to upload the order. D4 the Appellant submits that in absence of response from the Department they contacted to the Authority via phone and they were confirmed to file the appeal manually in absence of order on portal. D.5 The Appellant was granted personal l- caring on 28.09.2022... During the personal hearing in the additional submission in relation to appeal filed against the Advance Ruling order no. UPADGR 90/2021 dated 17-12-2021 the party reiterated the argument put forth in the written submission and told that they could not file the application in ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said order was riot uploaded on portal and they filed letter through mail on 11.02.2022 followed by reminder mail dated 08.03.2022 and ultimately they contacted the Authority via phone and they were, confirmed that they could file an appeal manually in case the said order is not uploaded on portal. E.4 After going through the provisions of appeal under Section 100 of the CGST Act, 2017 against an advance ruling order under Section 98 (4), of the Act, we find that Section 100 stipulates as under:- 100. (1) The concerned officer, the jurisdictional officer or an applicant aggrieved by any advance ruling pronounced under sub-section (4) of section 98, may appeal to the Appellate Authority. (2) Every appeal under this section shall be filed within a period of thirty days from the date on which the ruling sought to be appealed against is communicated to the concerned officer, the jurisdictional officer and the applicant: Provided that the Appellate Authority may, if it is satisfied that the appellant was prevented by a sufficient cause from presenting the appeal within the said period of thirty days, allow it to be presented within a further period not exceeding th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Appellant though the jurisdictional officer on 15-01-2022 itself. Further, since the Appellant had sought for advance ruling hence they were obviously well aware of the provisions of appeal against an order for advance ruling given by the Authority under Section 98(4) of CGST Act. We find that Rule 107-A of CGST Rules, stipulates the provision for manual filing of appeal against an order issued by the Authority for Advance Ruling and this option to file appeal manually was always available with the appellant and they have ultimately filed it manually without any glitch, whatsoever. The Appellant had sufficient time to file an appeal against the said advance ruling, however, they failed to comply with the time limit prescribed under law for filing an appal against the concerned advance ruling order. E.9 It would be pertinent to mention here the decision of Hon'ble Supreme Court in Writ Petition (C) No. 3 of 2020 dated 10.01.2020, wherein, the Hon ble Apex Court has ordered for extension of period of limitation due to COVID-19 led adverse circumstances as under- in cases where limitation would have expired during the period between 15.03.2020 till 28.02.2022, notwiths ..... X X X X Extracts X X X X X X X X Extracts X X X X
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