9911796707
TMI Blog2025 (1) TMI 393X X X X Extracts X X X X X X X X Extracts X X X X ..... unt, whichever is earlier. The averment of the appellant that the mobilization advance is not in the nature of payment; that it is merely a transaction in money; that consideration excludes deposit, is not a legally tenable argument. Further, the findings of the GAAR concurred with, that the time of supply in respect of the mobilization advance/advance payment received by the appellant in respect of supply of service, is the date of receipt of such advance. The question of applicability of notification No. 66/2017-CT (Rate) dated 15.11.2017, does not arise, owing to the fact that it is already held that in terms of the agreement between the appellant and MORT H, the supply is in respect of services. The said notification is applicable only in respect of supply of goods. Conclusion - The time of supply for GST purposes is the date of receipt of the mobilization advance. The appeal filed by appellant M/s S.P. Singla Constructions P Ltd. is rejected. - RAJEEV TOPNO AND B.V. SIVA NAGA KUMARI, MEMBER Present for the Appellant: Shri Rajat Mittal, Advocate, Shri Sanjay Shah, Advocate Shri Mohinder Kumar, Head Taxation, M/s. SP Singla Constructions P Ltd.. At the outset we would like to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is the time of supply for the purpose of discharge of GST in respect of mobilization advance received by it for construction services. 5. Consequent to hearing M/s. S P Singla Constructions P Ltd., the Gujarat Authority for Advance Ruling [GAAR], recorded the following findings viz that M/s. S P Singla does not contest the taxability on said Advance, but seeks a ruling for deferment of GST on such advance from date of its receipt to date of issue of invoice; that in terms of sections 2 (31), 13 (1), 13 (2), notification No. 66/2017-CT dtd 15.11.2017, circular No. 26/26/2017-GST dtd 29.12.2017, the time of supply of services on advance received, is date of its receipt; that case laws pertaining to service tax, is not applicable to GST; the argument, that full advance is re-paid is misleading as advance is adjusted into payments; that neither section 13 (2) nor proviso to section 2 (31) differentiates between an advance an interest bearing advance; that contractual BG shall not obscure the provision of time of supply for services on advance received; that advance received is adjusted towards the bill raised to its service recipient; the argument that advance is not towards discharge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he below mentioned case laws viz Five Star Construction P Ltd Order dated 2.11.2012 in ITA no. 1861/Del/2011. Punjab Tractors Cooperative Multipurpose Society Ltd Manu/PH/0141/1997 Thermax Instrumentation Ltd 2016 (42) STR 19 (Tri-Bom) SMS Infrastructure Ltd 2017 (47) STR 17 (Tri-Bom) Gammon India Ltd. 2021 (44) GSTL 373 (Tri-Bom) Reliance Infratel Ltd 2015 (39) STR 829 (Tri-Bom) Ario Infrastructure P Ltd 2016 SCC Online Del 5371 Thermax Instrumentation Ltd 2019 (22) GSTL 80 (Tri-Bom) Ahlcon India P Ltd Order dated 19.10 2012 in ITA no. 1924/Del/2011 FINDINGS 9. We have carefully gone through and considered the appeal papers, written submissions filed by the appellant, submissions made at the time of personal hearing the Advance Ruling given by the GAAR and other materials available on record. 10. The primary issue to be decided is as to what is the time of supply for the purpose of discharge of GST in respect of the mobilization advance received by the appellant. The GAAR, as is already mentioned supra, has held that the time of supply in respect of the mobilization advance received by the appellant, is the date of receipt of the said advance. 11. The appellant, as a part of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... G, to remain effective till the complete and full repayment thereof. 19.2.4 At any time after 60 (sixty) days from the Appointed date, the contractor may apply to the Authority for the second instalment of the advance payment along with an irrevocable and unconditional guarantee from a Bank for an amount equivalent to 110% (one hundred and ten percent) of such instalment, substantially in the form provided at Annex-III of Schedule-G, to remain effective till the complete and full repayment thereof. 19.2.7 The advance payment shall be repaid through percentage deductions from the stage payments determined by the Authority s Engineer in accordance with Sub-Clauses 19.5, as follows: (a) deductions shall commence in the next stage payment statement following that in which the total of all certified stage payments (excluding the advance payment and deductions and repayments of retention) exceeds 20% (twenty percent) of the contract price; and (b) deductions shall be made at the rate of 15% (fifteen percent) of each Stage payment statement until such time as the advance payment has been repaid; provided that the advance payment shall be completely repaid prior to the time when 80% (80 pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , whether by the recipient or by any other person but shall not include any subsidy given by the Central Government or a State Government: Provided that a deposit given in respect of the supply of goods or services or both shall not be considered as payment made for such supply unless the supplier applies such deposit as consideration for the said supply; Likewise, time of supply of services, in terms of section 13, states as follows viz [relevant extracts] Section 13. Time of supply of services. 13. (1) The liability to pay tax on services shall arise at the time of supply, as determined in accordance with the provisions of this section. (2) The time of supply of services shall be the earliest of the following dates, namely:- (a) the date of issue of invoice by the supplier, if the invoice is issued within the period prescribed under [****] section 31 or the date of receipt of payment, whichever is earlier; or (b) the date of provision of service, if the invoice is not issued within the period prescribed under [****] section 31 or the date of receipt of payment, whichever is earlier; or (c) the date on which the recipient shows the receipt of services in his books of account, in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the time of supply in respect of the mobilization advance/advance payment received by the appellant in respect of supply of service, is the date of receipt of such advance 17. We find that the applicant has raised an averment that when a bank guarantee is given to secure mobilization advance, it cannot be said to be towards discharge of an obligation; that where money is paid in discharge of an obligation, there is no question of repayment of the said sum and that if the mobilization advance was in the nature of a payment, there would be no requirement for he appellant to give a BG. The averment stands addressed in para 48(iii) of the impugned ruling of GAAR. We concur with the same. Even otherwise, we find that nothing is produced by the appellant to repudiate the said findings. 18. The next averment raised by the appellant is that since mobilization advance is received towards procurement of machinery, ie goods, in terms of notification No. 66/2017 dated 15.11.2017, CBIC has exempted payment of GST on advance paid on goods. We do not find much merit to the averment. The question of applicability of notification No. 66/2017-CT (Rate) dated 15.11.2017, does not arise, owing to ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
