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TMI Blog2022 (12) TMI 513X X X X Extracts X X X X X X X X Extracts X X X X ..... :- 1-12-2022 - SHRI. M. RAMMOHAN RAO, AND SHRI. T.R. RAMNANI, MEMBER NO.GST-ARA-78/2020-21/B-109 Mumbai, dt. 01/12/2022 PROCEEDINGS (Under Section 98 of the Central Goods and Services Tax Act, 2017 and the Maharashtra Goods and Services Tax Act, 2017) The present application has been filed under section 97 of the Central Goods and Services Tax Act, 2017 and the Maharashtra Goods and Services Tax Act, 2017 [hereinafter referred to as the CGST Act and MGST Act respectively] by M/s. United Breweries Limited, the applicant, seeking an advance ruling in respect of the following question. Whether assignment/transfer of leasehold rights in land structures standing there by the applicant to M/s. Greenscape IT Park LLP would qualify as 'supply' and liable to GST and if so, then under which section of GST Act? 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 also mean a reference to the same provision under the MGST Act. Further to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rights. A transfer or making over to another of the whole of any property, real or perpetual, in possession or in relation, or of any estate or rights therein. It includes transfers of all kinds of property (Higgins v. Monokton, 28 Cal. App 2nd 723, 83 F 2d 516, 519) including negotiable instruments. The transfer by a party of all of its rights to some kind of property, usually intangible property such as rights in a lease, mortgage, agreement of sale or a partnership. Tangible property is more often transferred by possession and by instruments conveying title such as a deed or a bill of sale. 2.8 It can be seen from the above that assignment is transfer of one's property, interest or rights. In general, transfer of rights in real property or Personal property to another that gives the transferee the rights that the owner or holder of the property i.e. the transferor had prior to such transfer. 2.9 A co-joint reading of the above makes it clear that there is no sale or supply of goods in this case and the transaction relates to transfer of a right to enjoy immovable property. 2.10 It can be seen from the definition of immovable property as per Section 3(26) of Genera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ified in Schedule III of CGST Act are outside the purview of GST. Sr. no. 5 of the said Schedule III prescribes as under: '5. Sale of land and , subject to clause (b) of paragraph 5 of Schedule II, sale of building' 2.16 Given the aforesaid, GST is not leviable on: a. Sale of land b. Sale of building (post Completion Certificate) In the instant case, there is transfer of completed building with value of INR 29,75,67,480/- (on which Stamp Duty is calculated) 2.17 Further, the principle of law is that what is exempted cannot be taxed indirectly. It is a well settled principle that if there is specific entry provided in the statute then the specific provision would prevail over the other general provision. 2.18 Reliance in this regard in placed on the case of CCE, Ludhiana v. Dr. Lal Path Lab (P) Ltd. [2007 (11) STT 307 (Punj. Har.) = 2007 (8) S.T.R. 337 (P H)] 2.19 In the instant case as a completed 'building' was transferred, the transfer of the said building should not be subject to GST. Transaction is covered under Not. No. 41/2017-GST 2.20 Not. No. 12/2017-CT as amended from time to time, provides as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of an activity which is being undertaken' and the instant activity is an ongoing supply, as the amount collected, although one time, is towards long-lease of more than 30 years. Given the aforesaid, applicant requests to admit and help the taxpayer to decipher the issue under consideration. 03. CONTENTION - AS PER THE CONCERNED OFFICER: OFFICER SUBMISSIONS DATED 28.10.2021:- 3.1 The applicability of the General Clauses Act, 1897 in the context of a Special Act like the CGST Act, 2017, is limited to areas where no express provisions are made under the said Special Act. 3.2 Section 7 (1A) read with Schedule Il under the GST Act provides which of such supplies shall be treated as supply of goods or services. Paragraph 2 of Schedule II provides that with respect to transactions relating to land and buildings, any lease, tenancy, easement, license to occupy the land, letting out of a building including a commercial, industrial or residential complex for business or commerce is the supply of services. In other words, benefits arising from land in the forms specified in paragraph 2 of Schedule ii are not to be treated as transactions in immovable property but as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ited Breweries Ltd by the clauses of Lease deed executed with MIDC is not permitted to sub-lease without the approval of MIDC. The activity of applicant as seen from the impugned agreement executed the approval letter of MIDC, is only a transaction in which United Breweries Ltd agrees to transfer the leasehold interests it possesses for the remaining lease period in favor of GREENSCAPE with the approval of MIDC in respect of the land required by GREENSCAPE. Therefore, the activity is not a transfer of leasehold rights by United Breweries Ltd to GREENSCAPE but is an activity of agreeing to transfer the leasehold interests that the United Breweries Ltd holds on the land to be leased to GREENSCAPE by MIDC. The modified lease deed is also executed by United Breweries Ltd and GREENSCAPE independently with MIDC and GREENSCAPE is to pay the differential cost of lease rentals and processing charges to MIDC, as seen from the approval letter of MIDC. The above, clearly establishes that the activity undertaken by United Breweries Ltd in agreeing to transfer the interests of the leasehold rights in the land required by GREENSCAPE for the furtherance of their business, against a consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... am Mahure learned CA, were present. Jurisdictional officer was absent. The Authorized Representatives made oral submission with respect to admission of their application. It is brought to the notice of the applicant that the Applicant has sought Advanced Ruling for past transaction. As per Section 95(a) of GST Act, the application is not maintainable. The applicant was directed to submit relevant agreement copies, documents and written submission regarding maintainability of application before or at the time of final hearing. The application was admitted for further process. 4.2 Final part e-hearing was held on 1.11.2022. Authorized representative of the applicant, Shri. Pritam Mahure, Learned CA Shri. Sujan Devaraju, Learned Tax Head were present. The Jurisdictional officer Shri. Vivekanand Sawale, Deputy Commissioner RAI-E-004, was present. Applicant was heard. 05. OBSERVATIONS AND FINDINGS: 5.1 We have gone through the facts of the matter, documents on record and submissions made by the applicant as well as the jurisdictional officer. 5.2 The Applicant has transferred its lease rights in respect of lease hold land measuring 24,300 Sq. Mtrs., which was leased ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the payment; (ii) the date of receipt of payment shall be the date on which the payment is entered in the books of account of the supplier or the date on which the payment is credited to his bank account, whichever is earlier. (3) In case of supplies in respect of which tax is paid or liable to be paid on reverse charge basis, the time of supply shall be the earlier of the following dates, namely:- (a) .; Or (b) .: Provided that Provided further that .. (4) In case of supply of vouchers by a supplier, the time of supply shall be- (a) the date of issue of voucher, if the supply is identifiable at that point; or (b) the date of redemption of voucher, in all other cases. (5) Where it is not possible to determine the time of supply under the provisions of sub-section (2) or sub-section (3) or sub-section (4), the time of supply shall-- (a) in a case where a periodical return has to be filed, be the date on which such return is to be filed; or (b) in any other case, be the date on which the tax is paid, (6) . 5.5 As per the provisions of Section 13 (2) mentioned above, the time of supply of serv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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