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TMI Blog2023 (8) TMI 1205X X X X Extracts X X X X X X X X Extracts X X X X ..... terms of Section 104 of the Act, where the Authority finds that advance ruling pronounced by it under sub-section (4) of Section 98 or under sub-section (1) of section 101 has been obtained by the applicant by fraud or suppression of material facts or misrepresentation of facts, it may, by order, declare such ruling to be void ab initio and thereupon all the provisions of this Act or the rules made thereunder shall apply to the applicant as if such ruling had never been made. 5. At the outset, we would like to make it clear that the provisions of both the Central Goods and Service Tax Act and the Tamil Nadu Goods and Service Tax Act are the same except for certain provisions. Therefore, unless a mention is specifically made to such dissimilar provisions, a reference to the Central Goods and Service Tax Act would also mean a reference to the same provisions under the Tamil Nadu Goods and Service Tax Act. The Applicant M/s Access Healthcare Services Private Limited, A9, First Main Road, Ambattur Industrial Estate, Chennai, Tamilnadu 600 058 (hereinafter referred as the Applicant) is registered under the GST Act, 2017 vide GSTIN No. 33AAJCA1885H1ZN. The Applicant has sought Advance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after 8.00 PM) to use the car facility provided by the Applicant for commuting to/from workplace and home. They have added that, no outsider will be permitted to use the transport facility provided by the Applicant. * That the said policy requires that, in no circumstances shall a women employee be the last person to be dropped and a male employee shall accompany women employees at all times till the point of drop. Hence, the Applicant stated that they are providing transportation facility to all the employees who are working beyond 8.00 PM by taking measures to provide adequate protection of the dignity, honour and safety of the women employees. * That all the employees to whom transportation facility is provided arc directly working under the employment of the Applicant and there are no contract employees. No recovery of costs is made by the Applicant from the employees for providing transport facilities. * That the Applicant has been receiving services of leasing/hiring/renting of motor vehicles for transportation of employees and paid tax on the same, either on reverse charge mechanism basis or on payment of consideration to supplier where the supplier has raised invoice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lement of a taxable composite or mixed supply; (ii) membership of a club, health and fitness centre; and (iii) travel benefits extended to employees on vacation such as leave or home travel concession: Provided that the input tax credit in respect of such goods or services or both shall be available, where it is obligatory for an employer to provide the same to its employees under any law for the time being in force. 3.2. The Applicant has also quoted circular No. 172/04/2022 dated 6th July 2022, issued by Ministry of Finance wherein it was clarified that the proviso after sub-clause (iii) of clause (b) of subsection (5) of section 17 of the CGST Act is applicable to the whole of clause (b) of subsection (5) of section 17 of the CGST Act. The said amendment was made based on the recommendations of the 28th GST Council meeting held on 21.07.2018 and it was made known to the trade public through the Press note wherein it has been stated "that the scope of input tax credit is being widened and it is now be made available in respect of goods or services which are obligatory for an employer to provide to its employees, under any law for the time being in force". 3.3. The Applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R has been asked to submit the copy of statutory legal enactment mandating provision of transport facility and copy of invoice issued by transport service providers. The Applicant has furnished copy of the tax invoice issued by the service providers for the month of January 2023 and Notification issued by the Labour and Employment Department vide G.O. Ms. No. 60, Labour and Employment (K2), dated 28th May 2019 mandating transport arrangements to be provided to the women employees who work in shifts. 6.1. We have carefully examined the statement of facts, supporting documents filed by the Applicant and the additional submissions made during the hearing. 6.2. The Applicant is a Private Limited Company engaged in rendering IT enabled support services in the healthcare sector to customers located outside India. They are operating in shifts as their customers/recipients are located in various time zone. They are providing transport facilities to their employees. 6.3.1. As seen from the copy of agreement furnished by the Applicant, they have entered into an agreement with the service provider M/s. New Kannan Travel Lincs India (P) Ltd., for providing transport facilities to the employ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an thirteen persons (including the driver), except when they are used for making the following taxable supplies, namely:- (A) further supply of such motor vehicles; or (B) transportation of passengers; or (C) imparting training on driving such motor vehicles; (aa) vessels and aircraft except when they are used- (i) for making the following taxable supplies, namely:- (A) further supply of such vessels or aircraft; or (B) transportation of passengers; or (C) imparting training on navigating such vessels; or (D) imparting training on flying such aircraft; (ii) for transportation of goods; (ab) services of general insurance, servicing, repair and maintenance in so far as they relate to motor vehicles, vessels or aircraft referred to in clause (a) or clause (aa): Provided that the input tax credit in respect of such services shall be available,- (i) where the motor vehicles, vessels or aircraft referred to in clause (a) or clause (aa) are used for the purposes specified therein; (ii) where received by a taxable person engaged- (I) in the manufacture of such motor vehicles, vessels or aircraft; or (II) in the supply of general insurance services in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the same category of goods or services or both or as part of a taxable composite or mixed supply. 6.5.3. From the above, it is clear that, with effect from 01.02.2019, Input Tax Credit has not been allowed on leasing, renting or hiring of motor vehicles, for transportation of persons, having approved seating capacity of not more than thirteen persons (including the driver). 6.5.4. However, as per the proviso to Section 17(5)(b), input tax credit in respect of such goods or services or both shall be available, where it is obligatory for an employer to provide the same to its employees under any law for the time being in force. 6.5.5. Further, it is seen that CBIC vide Circular No. 172/04/2022 dated 06.12.2022, issued by Ministry of Finance wherein it was clarified that the proviso after sub-clause (iii) of clause (b) of subsection (5) of section 17 of the CGST Act is applicable to the whole of clause (b) of subsection (5) of section 17 of the CGST Act. 6.5.6. In the instant case, it has been specifically mentioned in the invoices issued by the service providers that the seating capacity of the motor vehicles (including driver) is less than thirteen persons. However, it is obl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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