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TMI Blog2024 (10) TMI 1213X X X X Extracts X X X X X X X X Extracts X X X X ..... is performed & invoiced after 01.01.2022 but which is allotted before 01.01.2022? 3. What is the rate of tax in respect of work allotted by Maharashtra Jeevan Pradhikaran ('MJP') as a part of Jal Jeevan Mission which is a mission of Government of India allotted, performed & invoiced after 01.01.2022? 4. Who is the service receiver within the meaning of Sec.2(93) of CGST/MGST Act in respect of amounts received as grants by MJP which are paid to the applicant on services provided before 01.01.2022? 5. Who is the service receiver with in the meaning of Sec.2(93) of CGST/MGST Act in respect of amounts received as grants by MJP which are paid to the applicant on services provided after 01.01.2022? 6. appointment of MJP as an agency to implement water Supply schemes amounts to legation of sovereign function enumerated in Sch. XI & XII with in the frame work of Constitution of India so as to hold that MJP has performed the function entrusted under Article 248G & 243W of the Constitution of India? At the outset, we would like to make it clear that the provisions of both the CGST Act and the ST Act are the same except for certain provisions. Therefore, unless a mention is specifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority Act in 1976 virtue of which all water by supply/drainage/sanitation/storm water schemes are implemented through the said authority. The said authority is wholly controlled by the Govt. & receives funds from consolidated funds as per budget allocations from the respective Government for execution of any new water supply/sanitation scheme. Please see page no 20 of the paper book that shows that the amounts received by the applicant are out of budget allocations. 1.6 By virtue of amendment dated 01.01.2022 referred to in para 4 above, there is a perception in trade that the activity of the applicant is no longer exempted but is chargeable to full rate of tax i.e., 18%. However, there is no uniformity in understanding the exact legal position of tax exigibility on the applicant's activity, for some of the Zilla Parishad's, some State Governments add GST payable @ 18% to the invoice payable in respect of pure service activity performed, by tax persons identically situated, to that performed, by the applicant. Therefore, this present application preferred in order to officially clarify the rate of tax application to the activity performed by the applicant viz." pure serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervices provided by the Appellant to Government Corporations or Authorities established by the State Government under a legislation or government order are provided to a "Government Authority" with in the meaning of Notification 25/2012. b. Karad nagar parishad versus commissioner of C. Ex. & ST, Kolhapur (20 GST. 288) Where in it was held that regulatory fees charged by the Municipal Corporation come with in the ambit of "sovereign functions" with in the meaning of Article 243W and hence not exigible to service tax. c. Ganpati mega builders (1) Pvt. Ltd. (58 GSTL 324) Here in it was held that construction services falling within the purview of Article 243 G & W provided to JNNURM, Mandi Samiti & Mandi Parishad & other municipal bodies are not subject to service tax. d. Cuddalore Municipality (55 GSTL 397) Where in it was reiterated that services provided to Municipalities with respect to functions specified in article 243 G & We are not chargeable to service tax. 2.1.2 The applicant provides technical management consultancy services to the MJP, these services are related to water supply, irrigation & sewage management. The aforesaid services have been entrusted to the Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts that clearly & unequivocally show that the work of water supply/drainage schemes undertaken which is outsourced to the applicants is being executed & controlled by the Central/State Government as a part of Jal Jeevan Mission: - a. Operational Guidelines issued by Government of India Ministry of Jal Shakti in December 2019. Specific attention is drawn to Financial Planning & Funding at Sr no 7 page no 44 to 53 of the document. b. Funds Allocation order no 682 dated 28-04-23 issued by State Water & Sanitation Mission Director allocating the funds to various districts for Project Management Consultancy under which the work of the applicant falls. c. Government of Maharashtra Resolution of Water Supply & Sanitation Department dated 17-06-2021 appointing Under Secretary as the Drawing & Disbursing Officer & Deputy Secretary as the controlling officer. 2.1.3 Thus, even in case of services rendered post 01.01.2022, the applicant submits that the services rendered, though apparently rendered to MJP, become services rendered to State Government/Central Government because the MJP in the instant case is working as an agent of the Government in execution of a constitutional duty/fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State Governments/ municipalities, as principals, are executing the water supply & disposal schemes through their agent MJP. The payments made by MJP, in fulfilment of the constitutional of duties the State/Central/Municipality Governments must be construed as payment by an agent on behalf of the respective principal. The principle of common law that payment by agent amounts to payment by principal applies with full force in the facts & circumstances of the presently impugned transaction & therefore the respective Government's become the service recipient under Section 2(93) of GST Act. 2.4. As specified before now, water supply, irrigation, canaling, drainage and other related functions responsibilities of the Centre & State Governments, as per Entry 56 of List I & Entry 17 of List II respectively, of the Indian Constitution. The applicant submits that where the makers of The Constitution have assigned a certain responsibility upon the government. The government Cannot, by enacting a legislation or otherwise, further delegate the same to any other authority & even when such activity is delegated it remains to be the responsibility of the respective Government as per scheme of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a part of their Constitutional function. 2.5. The applicant has annexed all the relevant documents in support of the averments. If the Hon'ble Authority for Advance Ruling desires certain more information &/or documents, the applicant is ready & willing to supply the same. 2.6 Additional Submission dated 26.06.2024 Kindly find below common additional argument points on facts & law in respect of all the four applicants: - 2.6.1. Water is a State Subject. Entry 17 of List Il VII Schedule lays down Water, that is to Say, water supplies, irrigation and canals, drainage and embankments, water storage and water power subject to the provisions of entry 56 of List I. List I entry 56 deals with interstate rivers. As regards supply of water, the Water policy has defined major projects & minor projects. The former are those that have an irrigation potential of more than 2000 hectares whereas less than 2000 hectares are minor projects. Schedule XI entry 3 mentions "Minor irrigation, water management and watershed development." As with in the realm of panchayats. Thus, the major projects are with in the realm of State Governments. 2.6.2. It is in discharge of this Constitutional fun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a money bill that becomes a Finance Act upon passage, duly passed in the Parliament/ Assembly having the force of law. The above statement also applies with full force to the budgetary support by State Government. Section 2(93) defines recipient of service as the person who is liable to pay the consideration where consideration is payable for the supply. In the present case where the payment is authorized through the Central/ State Budget, by virtue of the respective finance Act, the concerned Government is legally liable to pay the sum earmarked & appropriated to a given expenditure head & therefore they become the person liable to pay & consequently the service receiver is the Central/ State Government. The applicants herein say & submit that their bills are cleared only when the amounts are received from budgetary support. Kindly note that all the arguments are restricted & limited to schemes implemented through Jal Jeevan Mission which is a Central mission scheme. 2.6.6. The payments received by the applicants is through Public Finance Management System (PFMS). PFMS is a web based financial application developed & implemented by Controller of Accounts. Department of Expendit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns from other stake holders are involved similarly the present application is not intended in respect of schemes implemented through Commercial Borrowings. 2.6.11. Therefore, given the fact that payment is made through a designated account not in control of MJP rather in full control of Central/ State Government, JJM as a scheme entails the responsibility of Central/ State Government in making the payments thus making them the person liable to pay within the meaning of Section 2(93). 2.6.12. While interpreting the clause of payment, if one was to consider, the event of non-payment on the part of receiver, such scenario would lead to infringement of finance bill apart from the breach of contract. In such case the statutory liability to pay & incur the expenditure as per finance bill takes precedence over the contractual liability as per clause 5.5. of the empanelment agreement, while interpreting Section 2(93), i.e. person liable to pay. 2.6.13. Section 2(93) specifically includes an agent acting on behalf of principal as recipient, the present facts clearly point out that MJP who is acting as an agent of Central/ State Government thus making the latter recipient of service. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vereign Governments to supply water. It is in this context that the applicants submit that the State/Central Government are making the payments being Constitutionally & legally liable to make payments for the water supply schemes. 2.7.4. The immediate issue that arises is then what is the impact of the Governments above legal duty to pay in the present matter where the contractual obligation is undertaken by MJP & then who is to be reckoned as the person liable to pay as per Section 2(93) of GST Act. The applicant submits that the legal liability to pay overrides the contractual liability to pay. The above proposition may be supported by an example. Say the legal liability to pay GST is on supplier u/s 9(1) in respect of transactions liable to forward charge. Suppose in a given case the above liability is contractually undertaken by the receiver or buyer. Even then the legal liability to pay overrides the contractual obligation undertaken & remains with the supplier. Similarly, it is submitted, that in the present case despite the fact that MJP has undertaken the contractual liability to pay, the same is overridden by the Governments Constitutional & Legal liability to pay. 2.7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.1 In this said matter, the notice in form ASMT-10 has been issued as per case received from EIU, Mumbai for scrutiny of returns on 30.11.2023 as mentioned by the applicant. The issue parameters in the said notice are I) Parameter-76- comparison of taxable turnover derived from GSTR-7 filed by the recipient vis- a-vis the taxable turnover reported by the taxpayer in his GSTR-3B, 2) Parameter-80- Interest on late filing of GSTR-3B. 3.2. The service rendered by the applicant has been given to Maharashtra Jeevan Pradhikaran (MJP, which is a Government entity and non-Government of Maharashtra. As Maharashtra Jeevan Pradhikarna (MJP) is Maharashtra water supply and sewerage Board (MWSSB) and was established as per MWSSB Act 1976 (Page no.-1) and was subsequently named as Maharashtra Jeevan Pradhikaran (MJP in 1977. The same subject matter is also addressed by the Hon Maharashtra Authority for Advance Ruling in order no. GST-ARA-71/2019-20/B-60 Mumbai, Dated 22.03.2021 in the discussions and findings page no. 11 point no. 5.6.11 and confirmed the same as 'government entity'. 3.3. Government entity has been defined in the notification no. 32/2017-Central Tax (Rate) dated 13th October ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd sewerage services in the State of Maharashtra. 5.1.3. The MJP has granted a contract for supply of "Technical Consultancy for Project Development and Management support "services to the Applicant vide agreement for Empanelment dated 25" of March 2021. 5.1.4. Important terms of the Contract, necessary for decision are reproduced as under, (a) The agreement between Maharashtra Jala Pradhikaran and The Nisarga Consultancy (Emphasis supplied) (b) Services to be performed by the Consultant are namely: i Carrying out Reconnaissance Surveys and preparation of Feasibility Report. ii Carrying out detailed detail of Tender Documents and Bid Process Management including preparing proposal for getting requisite permissions from various concern competent authority. :IV. functioning as Project Management Consultant & Technical Auditor. V. Supervision and Monitoring of Operation and Maintenance (O&M) and asset management for a for a period of maximum one year. (Emphasis supplied) (c) Para3- The MJP hereby agrees to pay the Consultant in consideration of the performance of the Services such amounts as may become payable under the become payable under the provisions of the agreement at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n no extra payment or Interest will be payable on account of delay of payment, however MJP will tried to release payment as early as possible from other sources of MJP by taking approval from competent authority. The Maharashtra Jeevan Pradhikaran shall make the payment of the Consultants periodically as given in schedule of payment above within Thirty days on receipt of invoice from the consultant after the receipt by the Maharashtra Jeevan Pradhikaran of bills with supporting documents. Only such portion of a monthly statement that is not satisfactorily supported may be withheld from payment. (Emphasis supplied) 5.1.6. The applicant has submitted details of R.A. Bill no.1 dated 24-10-2021 in name of Executive Engineer Maharashtra Jeevan Pradhikaran, Division-Pune, District-Pune. Description of services is "submission draft PFR, submission for final PFR Submission of Final report under Jal Jivan Mission services for water supplies scheme". Total value of the invoice amount is Rs. 5,50,213/-. And Bill no. 2 dated 21-02-2022 in name of Executive Engineer Maharashtra Jeevan Pradhikaran, Division-Pune, District-Pune. Description of services is "Item No. 1- Carrying out Reconnaissanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ading & Group Service Code (Tariff) Service Description Heading 9983 Business and Production Services Group 99839 Other Professional, technical and business Services. Heading 9983-Group 99839 998399 Other professional, technical and business services n.e.c. Explanatory Note- This service code includes drafting services (detailed layouts, drawings, plans and illustrations of buildings, structures, systems or components from engineering and architectural specifications, done by architectural draftsmen or engineering technicians); compilation services of facts and information (i.e. databases), n.e.c. Notification No.11/2017- Central Tax (Rate) dated 28th June 2017. Sr No Chapter, Section or Heading Description of Service Rate (percent.) Condition (1) (2) (3) (4) (5) 18 Section 8 Business and Production Services 21 Heading 9983 (Other professional, technical and business services) (ii)Other professional, technical and business services other than [(i) and (ia) above] [and serial number 38 below] media. 9 - 5.3.1 Applicants submission- These services are classifiable under HSN Code/ SAC code -998399- Other profess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the constitutional provisions of article 243 G & W, it has to be construed that the function of water supply, irrigation, canaling etc. is being carried on by the State Government through the agency of Maharashtra Jeevan Pradhikaran, any attempt to interpret otherwise would mean that the State Government has abdicated its abdicated its function of water supply, irrigation, canaling etc. to the Maharashtra Jeevan Pradhikaran which would be entirely unlawful & contrary to the constitutional prescriptions and procedure. 5.4.1. Any law enacted in India has to be interpreted & construed in harmony with the provisions of the Constitution or otherwise it falls prey to the vice of unconstitutionality. If as per the Constitution a given activity is the function/ duty or responsibility of State/Central Government or local Government, then, despite the fact that apparently a body corporate owned by Government is entrusted with the function, the activities of the said body corporate have to be construed as an agent of the respective Government. For all the above reasons, the applicant prays that it be held that despite the deletion of be held that despite the deletion of words Governmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wers, subject to the provisions of this Act, to acquire, hold or dispose of property, both moveable and immoveable, and to contract, and may sue or be sued by its corporate name aforesaid. (Emphasis supplied). Section 24. Execution of contracts, etc Every contract or assurance of property on behalf of the Authority shall be in writing and executed by such authority or officer and in such manner as may be provided by regulations. (Emphasis supplied). b. The Empanelment & supply of Service Contract executed between the MJP and the Applicant dated 31-03-2021, does not mention that MJP is agent of the Authority or that it is signing contract on behalf of the State or Central Government. Relevant clauses are as under, This Agreement (here in after called the March, "Contract") is made at Mumbai on 30th of 2021 between the Maharashtra Jeevan Pradhikaran (MJP) having its registered office at 4th Floor, Express Towers, Ramnath Goenka Marg, Nariman Point, Mumbai, Maharashtra 400021. (Herein after called "the MJP" which expression shall means and includes its Successor or succession and permitted assigns) of the one part. 3 The MJP hereby agrees to pay the Consultant in considerati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n made in the course or furtherance of business; c. Provisions of Article 282 of the Constitution of India- "282. Expenditure defrayable by the Union or a State out of its revenues The Union or a State may make any grants for any public purpose, notwithstanding that the purpose is not one with respect to which Parliament or, the Legislature of the State, as the case may be, may make laws," Hon'ble Karnataka High Court in case of K N Subba Reddy v state of Karnataka, published in AIR 1993 Kant 66, has explained the purpose , Scope and Rights arising out of Grants under Article 282 has explained as under, "This provision vests in the Centre a very broad power to give grants to the States the States for any specific public purpose. The attitude of the courts is not to interfere this refer this matter and leave it to the judgment of the Central Government. The proper place lace to criticise any grant by the government is the legislature and not the courts" The grants given under Art. 282 are also known as discretionary grants, the reason being that the Centre is under no obligation to give these grants to any State; the Centre may give such a grant to one State and not to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m, the custody of public moneys other than those credited to such Funds received, by no stretch of imagination, this Article creates any right for benefit of vendors and suppliers of implementing Agencies., as claimed by the Applicant. 5.4.4 Decision- Submission of the Applicant is not based on the provisions of the MJA Act, 1976, the GST Act, 2017 and terms of Contract. The applicant could not produce any evidence (Binding Judgment on this issue) that The State Government has abdicated its responsibility while setting up the MJP. Secondly, to say that MJP is agent of State in Common Law and hence supplies made to MJP are in fact supplies made to the State Government, is contrary to the express provisions of section 15, 25 and Para v2 of Schedule I of the GST Act, as aforesaid. For purpose of GST, these are distinct Persons. 5.4.5 Financial Bill- after its passage thereof in parliament- The respective Governments become liable to pay for the Developmental schemes related to Constitutional functions. And these provisions of Finance Act, will override the provisions of the MJP Act, thereby making respective Governments, as persons liable to pay to the applicant. Hence a as per pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f creation of rights against the "Grants" by the Central Government is decided by Hon'ble High Court of Punjab & Haryana, in Sukhpal Singh Khaira vs State Of Punjab And Others Civil Writ Petition No.20278 of 2012 (O&M) decided on January 16, 2013, in which it is held as under, "21. We make it clear that because of the reason that petition is rejected as not maintainable, we have not gone into the proprietary wisdom and justification of the expenditure involved. It is for the Legislators to debate, at the Floor of the House, as to of the House, as to whether the expenditure is justified and can be treated as in 'public interest or not; treated as in 'public interest' or not; whether it serves any public interest to give donation of Rs. 1 Crore to the school, which is not located in the State of Punjab, but in Himachal Pradesh; whether the expenditure could be appropriated to the said Programme/scheme for which it was allocated and spending the amount in the aforesaid manner amounts to violating the provisions of violating the provisions of the said Programme or not; whether a Sum Or Rs. 1 Crore should be given to a school, which otherwise enjoys robust financial health and on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transferred to the Authority; and (b) the rights, liabilities and obligations of the State Government, whether arising out of any contract or otherwise pertaining to the said service, shall be the rights, liabilities and obligations of the Authority. (2) such properties, assets, rights, liabilities and obligations shall valued in such manner as the State Government may determine. (3) All suits and other legal proceedings with respect to the matters referred to above instituted or to be instituted or defended by or against the State Government before the appointed date may be continued, or instituted, or defended by or against the Authority. b. Decision- Property created under the Water supply schemes implemented by the MJP vests in MJP only, and not with the Government. Hence the argument being contrary to law is not accepted. 5.4.10 The work executed in this contract by the applicant are related to "Jal Jivan Mission" scheme launched by the Government of India, in 2019, to provide potable water is available to the last village and town through pipeline. It is further submitted that as per government resolution, 50% share of the expenditure incurred for the scheme is goi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsultant hereby agrees with the MJP to perform the Services of Project Development & Management Support as CLA: support" as CLASS I Consultant for Pune Region in conformity with the provision of the Agreement. Tender Document- Page 63 &64 Para 5.5 & 6.4- Payment: In consideration of the Services performed by the C Consultants under this Contract, the MJP shall make to the Consultants such payments and in such manner as 1S pr. make to the Consultants such payments and in such manner as is provided schedule of Payments of this Contract as per scope of work. work. Terms and conditions of payment: The rates given in schedule of payments are including GST and statutory taxes. Payment will be made as per payment schedule stated in the Schedule of payment Appendix Il. Any other payment shall be made after the conditions listed in the Schedule for such payment have been met, and the consultants have submitted an invoice to the MJP specifying the amount due. If there is delay in payment due to shortage of funds or any other reason no extra payment or interest will be payable on account of delay of payment, however MJP will tried to release payment as early as possible from other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority shall be in writing and executed by such authority or officer and in such manner as may be provided by regulations. 25. Authority Fund The Authority shall have its own fund to be called "the 2 [Authority] Loan Fund", which shall also be deemed to be a local fund and to which shall be credited all moneys received by or on behalf of 1 [the Authority] by way of loans 28. Grants and subventions to the Authority The State Government may, under appropriation duly made in this behalf, from time to time, make grants and subventions to the Authority for the purposes of this Act, on such terms and conditions as the State Government may determine. 29. Loans to the Authority The State Government, from time to time, advance loans to the Authority on such terms and conditions, not inconsistent with the provisions of this Act, as the State Government and the Authority may agree upon. 33. Government as guarantor The State Government may guarantee the repayment of any loan and payment of interest on all or any of the loans given or transferred to the Authority for the purposes of this Act. 5.4.18. "Jal Jeevan Mission- Govt Resolution- Water Supply and Sanitation Departmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he central government fund is I received in the A fund of the state government, it will be transferred along with the state share to the Central Department of State Water and along with the state share to the Central Department of State Water and Sanitation Mission with in days. As per the guidelines of Jal Jeevan Mission, financial expenditure control should be done only through Public Financial Management System (PFMS) system. It is mandatory to act according to the instructions received from the central government. 5.4.14. Findings, observations and decision: - Provision of the aforesaid GR clearly state that (i) SMSM- is Registered as a society registered on 10-02-2010 under the Society Registration Act, 1860. (ii) A commercial account has been opened in a Scheduled / Nationalized Bank through the State Water and Sanitation Mission and is being approved by the Government. (Emphasis Supplied) (iii) The respective Governments have made available the Grants to MJP for Execution various Water Supply Schemes. Provision of Grant to MJP cannot be said to be payment made by the Central Government & State Government in ratio of 50% each are made by them directly to the applicant. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uctions issued by Ministry of Jalshakti vide No. PD-26025/ 2/2019-SBM dated 21-07-2024 about Implementation of PFMS by Implementing agencies are in brief as under, (i) Brief introduction of Public Financial Management System (PFMS) is a web-based application for online management of schemes of GO! and information & decision support system {DSS) for stakeholders. (ii) It is for Just-in-time Release of funds. It assists in complete monitoring of usage of funds including information on its ultimate utilization. (iii) The system is developed and maintained by O/o CGA, Dept. of Expenditure, Ministry of Finance, Government of India, New Delhi. o It is monitored by Prime Minister Office (PMO) regularly. Para 16.1- Release from Centre to State level implementing body.... The funds under SBMG will be released electronically by DDWS to the State Governments as per instructions issued by the Ministry of Finance from time to time. The State Governments shall release the funds to the SSBMG with in 15 days of transfer of funds from DDWS along with matching State share. In case of advance State share is released by the State Governments, the Same can be adjusted against the Centre share ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficient US funds are received in the MJP account, transfer of funds is approved by MJP through Mi wen PFMS. The account which is debited, is of MJP and not Government account. From the guidelines stated above, it is every clear is that PFMS-(i) The Public Financial Management System (PFMS) is a web-based financial management application, not Central or State Government, nor is it Bank account of either Government. (ii) Each Nodal Body either of Centre, State, District or the implementing agency will have to open their own Bank account, which shall not be changed during implementation of the scheme Grants will be released by Centre and State just in time. Thus, it is clear that payment clear that payment through PFMS is not payment by Government, but payment made by Implementing made by Implementing Agency (here either MJP or SWSM), out of the grants received by them from respective Governments. (Emphasis supplied) Last but not least- In Indian Banking system money is transferred from one account to another by way of NEFT, which is "National Electronic Fund Transfer (NEFT) is an online fund transfer system introduced by the Reserve Bank of India (RBI) in November 2005. transfer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come Tax is decided. In para 53 Hon'ble Supreme Court held as under, "Para 53. ...... The following passage from Cape Brandy Syndicate v. IRC 1921 (1) KB 64 has been approved by the Apex Court in the decisions rendered by their Lordships. "in a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied, one can only look fairly at the language used."(Emphasis supplied) 5.5 Supply of services where Time of supply is on or before 31-12-2021. 5.5.1 To decide applicability of the Exemption entry at 5r. No. 3 of the Notification No. 12/2017- Central tax (Rate) to the supplies during impugned period, following issues need to be decided. Table Sr. No Chapter, Section, Heading, Group or Service Code (Tariff) Description of Services Rate (precent.) Condition (1) (2) (3) (4) (5) 3 Chapter 99 Pure services (excluding works contract service or other composite supplies involving supply of any goods) provided to the Central Government, State Government or Union territory or local authority ***{or a Governmental auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the constitution. a. Submission of Applicant- It is submitted that the aforesaid services provided for Works to be executed by MJP for Water supply and in particular Jal Jivan Mission. Hence are in relation to the function entrusted under article 243G & 243W. b. Submission of the Jurisdictional Officer is as under - Officer agreed with the applicant. c. FINDING OBSERVATIONS AND DISCUSSION- From the agreement, it is clear that the applicant has provided "Technical Consultancy for Project Development and Management support services "for water supply scheme at various locations implemented by the MJP for supply of water, which are the function stated in article 243G & 243W. For sake of reference- relevant functions are reproduced as under, (a) ELEVENTH SCHEDULE (Article 243G) - Sr No. 3. Minor irrigation, water management and watershed development. & at Sr No 11. Drinking water. (b) TWELFTH SCHEDULE (Article 243W)- Sr No. 5. Water supply for domestic, industrial and commercial purposes & Sr No. 6. Public health, sanitation conservancy and solid waste management 5.5.5) Whether "the MJP" is "Governmental Authority" as required in entry number 3 & defined in definition 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... easons. These arguments are found to be is not based on evidence, far-fetched and based on conjectures and surmises and very specious argument and hence rejected and are in fact supplies made to the MJP. 5.6.2 Submission of the Applicant- In this regard also, the applicant has argued that Supply of Services by it, to the MJP for Jal Jeevan Mission, are in fact supplies to the Central Government, State Government for the aforesaid reasons. These arguments are found to be is not based on evidence, far-fetched and based on conjectures and surmises and very specious argument and hence rejected and are in fact supplies made to the MJP. 5.6.3 Submission of the Jurisdictional Officer is as under - Further the notification no 12/2017-Central Tax (Rate)dated 28th June 2017 was amended by Notification no. 16/2021-Central Tax (Rate) dated 18th November 2021 omitting the words "or a Government authority or a Government Entity" Point (i) page no-1. Hence the services rendered by the applicant are received by Maharashtra Jeevan Pradhikaran (MJP) which is a Government Entity and thus this service is taxable as any normal service and taxable as per type of service rendered. 5.6.4 Fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urpose of planning, development or improvement of cities, towns and villages, or for both," ***** Sub-section (20A) was omitted by the Finance Act, 2002 w.e.f. 01.04.2003. Deciding the applicability of exemption to the Appellant after deletion of sub-section 10 (20A), Hon'ble Supreme Court held as under, "Para 53, ...... The following passage from Cape Brandy Syndicate v. IRC 1921 (1) KB 64 has been approved by the Apex Court in the decisions rendered by their Lordships. "in a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied, one can only look fairly at the language used." (Emphasis supplied) 54. We fully endorse the views taken by the High Court in the above two judgments. 55. Now, reverting back to Explanation to Section 10(20), these are entities which mean the local authority. The submission of the appellant is that the appellant is covered by Clause (li) of the Explanation i.e. "Municipality as referred to in clause (e) of Article 243P of the Constitution". We, while discussing above provisions, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted from the aforesaid Entry at Sr. No. 3. 6. In view of the extensive deliberations as held hereinabove, we pass an order as follows: ORDER (Under Section 98 of the Central Goods and Services Tax Act, 2017 and the Maharashtra Goods and Services Tax Act, 2017) For reasons as discussed in the body of the order, the questions are answered thus - Question 1: What is the rate of tax in respect of work allotted by Maharashtra Jeevan Pradhikaran ('"MJP') as a part of Jal Jeevan Mission which is a mission of Government of India allotted, performed & invoiced before 01.01.2022? Answer: - Nil, being exempted under Entry at Sr No. 3 of the Notification No. 12/2017-Central tax (Rate)- dated 28" June 2017. Question 2: What is the rate of tax in respect of work allotted by Maharashtra Jeevan Pradhikaran ('MJP') as a part of Jal Jeevan Mission which is a mission of Government of India which is performed & invoiced after 01.01.2022 but which is allotted before 01.01.2022? Answer: - Taxable at rate of 18% (at 9% under CGST & SGST Act, each), being covered by Entry at Sr. No. 21 Heading 9983, (ii) of the Notification No. 11/2017-Central tax (Rate)- dated 28" June 2017. Q ..... X X X X Extracts X X X X X X X X Extracts X X X X
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