9911796707
TMI Blog2023 (12) TMI 938X X X X Extracts X X X X X X X X Extracts X X X X ..... ruction co., 797, Dadabadi, Kota, Rajasthan (hereinafter referred to as "applicant"). Applicant is registered and the applicant is engaged in the business of licensed contractor who bids for government and non-government tenders in the name of M/s Raghubala Construction co. The three issues raised by applicant is fit to pronounce advance ruling & it falls under the ambit of the Section 97(2) (b) given as under: (b) applicability of a notification issued under the provisions of this Act; (e) determination of the liability to pay tax on any goods or services or both; (g) whether any particular thing done by the applicant with respect to any goods and/or services or both amounts to or results in a supply of goods and/or services or both, within the meaning of that term; A. Submission of The Applicant: (in brief) That the applicant is a partnership firm which is registered assessee under the provisions of Goods & Services Tax (GST) regime having GSTIN as 08AAMFR4564N1ZF. The applicant is engaged in the business of licensed contractor who bids for government and non-government tenders and thereafter, work as per the terms and conditions of the tender/contract. B. Interpretation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned Authority (Rajasthan AAR) vide ruling dated 27.04.2018 in Advance Rule No. RAJ/AAR/2018-19/01 in Application No. Advance Ruling/CGST & SGST/2017-18/AR/01, has inter alia held that Jaipur Development Authority is a "government entity". 1.4. That in light of the aforesaid reasoning, your esteemed authority is prayed to rule that UIT Kota is a "government entity". 2. Whether constructing a Community Hall by the applicant at Bapu Nagar Residential Scheme, Kota, in accordance of works contract allotted by UIT Kota, is a taxable service under GST law and if yes, then determination of the liability to pay tax after applicable exemption and deductions; 2.1. That UIT Kota vide works contract has entrusted the applicant to construct a community hall at Bapu Nagar Residential Scheme Kota. It is essential to state here that as per submissions with regard to Issue No. 1, UIT Kota is a "government entity". Thus, the work allotted by UIT Kota is government works contract. 2.2. That it is necessary to state here that the purpose of community hall in a residential scheme is for the welfare and benefit of the public at large with specific focus upon the marginalized sections of the societ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... steemed authority is prayed to rule that the notification pertaining to the increased GST rate shall not be retrospectively applicable to the works contract entered prior to the date of notification. A. That any other submissions or grounds pertaining to the aforesaid issues shall be raised at the time of personal hearing of the present application. B. That the applicant reserves the right to alter or amend, the present application with the permission of your esteemed authority. C. QUESTIONS ON WHICH THE ADVANCE RULING IS SOUGHT: - 1. Whether Urban Improvement Trust (UIT) Kota is "Government Entity"; 2. Whether constructing a Community Hall by the applicant at Bapu Nagar Residential Scheme, Kota, in accordance of works contract allotted by UIT Kota, is a taxable service under GST law and if yes, then determination of the liability to pay tax after applicable exemption and deductions, or 3. If no, then whether the paid tax shall be refunded to the assessee along with appropriate interest. 4. Applicability of change in tax rate during continuing of a works contract, where the works contract has pre-fixed terms and conditions including total tender rate. D. PERSONAL HEARING ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity under article 243W of the Constitution; b. Further Notification No. 31/2017-Central Tax (Rate) dated 13.10.2017 defined "Governmental Authority" and "Government Entity" as follows:- (ix) "Governmental Authority" means an authority or a board or any other body, - (i) set up by an Act of Parliament or a State Legislature; or (ii) established by any Government, with 90per cent, or more participation by way of equity or control, to carry out any function entrusted to a Municipality under article 243 W of the Constitution or to a Panchayat under article 243 G of the Constitution. (x) "Government Entity" means an authority or a board or any other body including a society, trust, corporation, i) set up by an Act of Parliament or State Legislature; or ii) established by any Government, with 90per cent, or more participation by way of equity or control, to carry out a function entrusted by the Central Government, State Government, Union Territory or a local authority". 4. That on perusal of the above definitions it is transpicuous that the Urban Improvement Trust is a government entity further, the Hon'ble Rajasthan High Court, Jaipur Bench in The Urban Improve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions performed by the Trust, along with the factors of government control and financial assistance, we have no doubt that the Trust is a State Government deportment within the meaning of Section IS of the Act of 1959. The Ld. Rajasthan Authority for Advance Ruling Goods and Services Tax, Jaipur in the matter of Tata Projects Limited -SUCG Consortium Advance Ruling No. Raj/AAR/2018-19/01 Dated 27.04.2018 provided the following finding and held that: 8.1 As per definitions given under notification No. 12/2017-Central Excise (Rate) dated 28.06.2017 as amended vide notification No. 32/2017-Central tax (rate) dated 13.10.2017, (zf) "Governmental Authority" means an authority or a board or any other body, - (i) set up by an Act of Parliament or a State Legislature, or (ii) established by any Government, with 90per cent, or more participation by way of equity or control, to carry out any function entrusted to a Municipality under article 243W of the Constitution or to a Panchayat under article 243 G of the Constitution. 8.2. Jaipur Development Authority is a body constituted under Jaipur Development Authority Act 1982(Act. 25) as a statutory vehicle to implement the urban ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity is exempted from the whole of the service tax leviable in accordance with Mega Exemption Notification No. 25/2012-Service Tax dated 20.06.2012. Para 12 of is extracted and reproduced herein below: 12. Services provided to the Government, a local authority or a governmental 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 historical monument, archaeological site or remains of national importance, archaeological excavation, or antiquity specified under the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (24 of 1958); (c) a structure meant predominantly for use as (i) an educational, (ii) a clinical, or (iii) an art or cultural establishment; (d) canal, dam or other irrigation works; (e) pipeline, conduit or plant for (i) water supply (ii) water treatment, or (iii) sewerage treatment or disposal; or (f) a residential complex predominantly meant for self-use or the use of their employees or other pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titutions being established solely for educational, religious, charitable, health, sanitation or philanthropic purposes and not for the purposes of profit are not taxable being, non-commercial in nature. Generally, Government buildings or civil constructions are used for residential, office purposes or for providing civic amenities. Thus, normally Government constructions would not be taxable. However, if such constructions are for commercial purposes like local Government bodies getting shops constructed for letting them out, such activity would be commercial and builders would be subjected to Service Tax" From the above circular, we find that appellant are not liable to pay Service Tax. Accordingly, we set aside the impugned order and allow the appeal with consequential relief if any." The copy of judgments referred in this particular para is enclosed herewith and marked as Annexure-5. 7. That in consideration of the above referred judgments, it is humbly contended that the applicant rendered its services for the Development of Sports Complex and Construction of Players Rest House allotted by the Urban improvement Trust are non-commercial in nature, for the purpose of providi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment Larsen and Toubro Ltd. Vs. Assistant Commissioner of Service Tax and ors. dated 1.7.2016 is enclosed herewith and marked as Annexure-10. 10. That in the present case the work contract was executed at fixed rate and amount of consideration before the amended change in rate of GST, therefore such amended rate of GST can only be applied prospectively from the date of notification and the same is not applicable in a retrospective manner on an existing and pending work contract. The same copy of Invoices for the work which applicable and the UIT were doing since adequate is enclosed and marked as Annexure-11. 11. That any other submissions and/or grounds shall be raised at the time of personal hearing. 12. That the applicant reserves the right to alter or amend or add in the present application, if need so arises, with the permission of your esteemed authority. 13. That the applicant is also request to grant another opportunity to hear the matter for clarification the further with regard to the documents or judgment is enclosed herewith with the written submission. E. COMMENTS OF THE JURISDICTIONAL OFFICER The Jurisdictional office of the Joint Commissioner, State Tax, Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t through notification which is in effect at the time of such supply. The Government has the power to increase or decrease the rate of tax through Notifications. F. FINDINGS, ANALYSIS & CONCLUSION: At the outset we would like to make it clear that the provisions of CGST Act and RGST Act are in pari materia and have the same provisions in like matter and differ from each other only on a few specific provisions. Therefore, unless a mention is particularly made to such dissimilar provisions, a reference to the CGST Act would also mean reference to the corresponding similar provisions in the RGST Act 1) We have carefully examined the statement of facts, supporting documents filed by the Applicant along with application, oral and written submissions made at the time of hearing. We have also considered the issues involved, on which advance ruling is sought by the applicant, and relevant facts. We would like to discuss the submission made by applicant and will take up the above question for discussion one by one. 2) The applicant M/s. Raghubala Construction co., 797, Dadabadi, Kota, Rajasthan (hereinafter referred to as "applicant")- Applicant is registered and The applicant is enga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the State Government for each Trust, of whom one shall be a person belonging to scheduled tribe or scheduled caste, if no person of such caste or tribe is represented in the Trust by virtue of clause (a) or clause (b).] (2) The Chairman and the persons referred to in clause (c) of sub-section (1) shall be appointed by the State Government by notification. (3) The members of the Municipal Board referred in clause (b) of sub-section (1) shall be elected by the said Board. (4) If the said Board does not, by such date as may be fixed by the State Government, elect two of its members to be Trustees, the State Government shall appoint two members of the said Board to be Trustees and every person so appointed shall be deemed to be a Trustee as if he had been duly elected by the Municipal Board. (5) If the said Board shall have been superseded or dissolved in accordance with the provisions of the Municipal law for the time being in force, it shall be represented on the Trust by persons appointed or elected, as the case may be, by the officer or authority appointed under the said law to discharge the functions and exercise the powers of the Board during the period of its supersessio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by him either directly or indirectly through officers' subordinate to him in accordance with the Constitution. Further, as per article 166 of the Constitution, all executive actions of the Government of State shall be expressed to be taken in the name of Governor. Therefore, State Government means the Governor or the officers subordinate to him who exercise the executive powers of the State vested in the Governor and in the name of the Governor. 4.2) Further, Section 2(69) of the GST Act defines a local authority as below. "Local authority" means - (a) Panchayat as defined in clause (d) of article 243 of the Constitution; (b) a Municipality as defined in clause (e) of article 243P of the Constitution; (c) a Municipal Committee, a Ziila Parishad, a District Board, and any other authority legally entitled to, or entrusted by the Central Government or any State Government with the control or management of a municipal or local fund; (d) a Cantonment Board as defined in section 3 of the Cantonments Act, 2006 (41 of 2006); (e) a Regional Council or a District Council constituted under the Sixth Schedule to the Constitution; (f) a Development Board constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d taxable in light of Notification No. 22/2021-Central Tax (Rate) New Delhi, 31st December, 2021. G.S.R.....(E).- which is hereby reproduced as under-ln exercise of the powers conferred by sub-section (1), subsection (3) and sub-section (4) of section 9, sub-section (1) of section 11, sub-section (5) of section 15, sub-section (1) of section 16 and section 148 of the Central Goods and Services Tax Act, 2017 (12 of 2017), the Central Government, on being satisfied that it is necessary in the public interest so to do. on the recommendations of the Council, and in supersession of notification of the Government of India in the Ministry of Finance (Department of Revenue), No. 15/2021 - Central Tax(Rate), dated the 18th November, 2021, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R. 807(E), dated the 18th November, 2021, hereby makes the following amendments in the notification of the Government of India, in the Ministry of Finance (Department of Revenue) No. 11/2017- Central Tax (Rate), dated the 28th June, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R. 690(E), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udes supply of such services as the Government may, subject to such conditions, as it may, by notification, specify. (ii) As per sec 13(2) of CGST Act the time of supply of service for continuous supply of service shall be the earliest of the following dates: - If the Invoice is issued within the prescribed period under section 31(5), the date of issue of invoice by the supplier or the date of receipt of payment whichever is earlier, or If the invoice is not issued within the prescribed period under section 31(5), then the date of provision of service or the date of receipt of payment whichever is earlier. (iii) As per Section 14 of Act. Change in rate of tax in respect of supply of goods or services.- Notwithstanding anything contained in section 12 or section 13, the time of supply, where there is a change in the rate of tax in respect of goods or services or both, shall be determined in the following manner, namely:- (a) in case the goods or services or both have been supplied before the change in rate of tax,- (i) where the invoice for the same has been issued and the payment is also received after the change in rate of tax, the time of supply shall be the date of rece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate is applicable. 6) We have gone through the judicial pronouncements of various judicial authority and also gone through the decisions of various courts referred by applicant. We found that none of pronouncement submitted by applicant in his favors squarely covers the present question of law in respect of present case. Further we find that some of reference and case laws, which are relating to erstwhile service tax Act and provisions of Service Tax Act, cannot be equated to GST Act and entirely different, so not applicable in the instant case. In view of the foregoing, we rule as follows: - RULING (Under Section 98 of the Central Goods and Services Tax Act, 2017 and the Rajasthan Goods and Services Tax Act, 2017) Q.1. Whether Urban Improvement Trust (UIT) Kota is "Government Entity"; Ans- UIT Kota fails under the category of "Government Entity". Q.2. Whether constructing a Community Hall by the applicant at Bapu Nagar Residential Scheme, Kota, in accordance of works contract allotted by UIT Kota, is a taxable service under GST law and if yes, then determination of the liability to pay tax after applicable exemption and deductions, or Ans- Yes, the applicant is liable to ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
