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TMI Blog2023 (12) TMI 1269X X X X Extracts X X X X X X X X Extracts X X X X ..... ingly, the application for consideration/ruling not admitted on merits as applicant does not fall under the definition of supplier under Advance Ruling and cannot get the Advance Ruling under the Act. - SHRI AMIT KUMAR AND SHRI HARILAL PRAJAPATI, MEMBER ORDER UNDER SECTION 98(4) OF THE CGST ACT, 2017 UNDER SECTION 98 (4) OF THE UPGST ACT, 2017 M/s Lavish Buildmart Pvt Ltd., having registered office at Windsor Grand, 1C, 23rd Floor, Sector-126, Noida, Gautam Buddha Nagar, Uttar Pradesh-201303 (hereinafter referred as the applicant ) having GSTIN-09AABCL3285G1ZF have filed an application for Advance Ruling under Section 97 of the CGST Act, 2017 read with Rule 104 of the CGST Rules, 2017 and Section 97 of UPGST Act, 2017 read with Rule 104 of the UPGST Rules, 2017 in Form GST ARA-01 (the application form for Advance Ruling), discharging the fee of Rs. 5,000/- each under the CGST Act and the UPGST Act. 2. The applicant is, registered under the provisions of Central Goods and Services Tax Act, 2017 as well as Uttar Pradesh Goods and Services Tax Act, 2017 (herein after referred to as the CGST Act and UPGST Act respectively). The applicant had submitted an E-bid for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uding Commercial Complex for commercial activities such as shopping malls, showrooms, retail outlets, hotels, restaurants, offices and such other commercial uses. 6. The applicant has submitted their interpretation of law as under- They have referred to provisions contained in Section 9 and Section 7 of CGST Act and further stated that as per Para 2 of Schedule II to the CGST Act, 'any lease, tenancy, easement, licence to occupy land' shall be treated as supply of service. That as per SI No 5 of the RCM Notification, GST shall be paid under reverse charge by the recipient i.e business entity for services supplied by the Central Government, State Government, Union territory or local authority to such business entity excluding certain services. That Sl No 5A of the RCM Notification provides for payment of GST under reverse charge by the recipient in case of services supplied by the Central Government, State Government, Union territory or local authority by way of renting of immovable property to such registered persons. Noida Authority does not qualify to be Central/State Government, Union Territory or local authority. Being a statutory authority cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ply of long term lease by the NOIDA Authority. That the transaction of long term lease per se does not qualify as supply of service but as a transaction for sale of land and therefore the same is not taxable under GST at all. As per pars 5 of the Schedule III of the CGST Act, sale of land shall be treated neither as supply of goods nor a supply of services hence not taxable under GST. They referred to the definition of immovable property under Section 3(26) of the General Clauses Act and also referred to transfer of property as per Transfer of Property Act, 1882. They also referred to the Hon'ble Allahabad High Court order stating that even the tenancy rights are immovable property of the tenant. They also took recourse to various citations and allied acts to the effect that leasehold right is a benefit arising out of land and hence qualifies as land. They have stated that long term lease is nothing but conveyance of rights arising out of land, the same is a transaction for sale of land and therefore no GST should be levied on allotment of plot on Long Term Lease basis. The applicant further added that upfront amount payable in respect of service by way of g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovision under the UPGST Act. Further for the purposes of this Advance Ruling, a reference to such a similar provision under the CGST Act / UPGST Act would be mentioned as being under the CGST Act'. 10. We have gone through the Form GST ARA-01 filed by the applicant and observed that the applicant has ticked following issues on which advance ruling required- (1) Applicability of a notification issued under the provisions of this Act; (2) Determination of the liability to pay tax on any goods or services or both; 11. We would like to examine whether the issue raised in the application is squarely covered under Section 97(2) of the CGST Act 2017 or not. For this we would like to examine this matter in light of definitions of Advance Ruling under section 95 of the CGST Act 2017 and the same is reproduced as under: Section 95. Definitions of Advance Ruling. In this Chapter, unless the context otherwise requires,- (a) advance ruling means a decision provided by the Authority or the Appellate Authority to an applicant on matters or on questions specified in sub-section (2) of section 97 or sub-section (1) of section 100, in relation to the supply of go ..... X X X X Extracts X X X X X X X X Extracts X X X X
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