9911796707
TMI BlogBuilder charge GST for sale without invoiceX X X X Extracts X X X X X X X X Extracts X X X X ..... Builder charge GST for sale without invoice X X X X Extracts X X X X X X X X Extracts X X X X ..... Reply By VENU K: The Reply: GST credit cannot be claimed is true. But if the builder has collected GST from you he is bound to give you a tax invoice also. Reply By Sadanand Bulbule: The Reply: The builder is also bound to remit the amount of GST so collected to the department on time. Reply By KASTURI SETHI: The Reply: The undermentioned my reply is in consonance with the reply of Sh.Sadanand Bulbule, Sir. Therefore, my reply should be read conjointly with his reply. (i) Sale of land (plot) is neither supply of goods nor services as per Clause 5 of Schedule-III. Hence it is non-GST supply and GST is not leviable. The words, "sale consideration including GST" confirm that the builder has collected GST from you. which is not leviable. He cannot retain with him. (ii) As per Section 76 (1) of CGST Act , the builder is statutorily bound to deposit the said amount of tax with the Govt. (iii) As per Section 54 (1) of CGST Act, any person can claim refund. . For claiming refund as an individual, being unregistered, you can apply for refund under Section 54 (1) of CGST Act read with Board's circular appended b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elow Refund for unregistered person under CGST Rule 89(2) - Implementation of filing an application - Clarification C.B.I. & C. Circular No. 188/20/2022-GST, dated 27-12-2022 F. No. CBIC-20001/2/2022-GST Government of India Ministry of Finance (Department of Revenue) Central Board of Indirect Taxes & Customs, New Delhi Subject : Prescribing manner of filing an application for refund by unregistered persons - Regarding. Instances have been brought to the notice where the unregistered buyers, who had entered into an agreement/contract with a builder for supply of services of construction of flats/building, etc. and had paid the amount towards consideration for such service, either fully or partially, along with applicable tax, had to get the said contract/agreement cancelled subsequently due to non-completion or delay in construction activity in time or any other reasons. In a number of such cases, the period for issuance of credit note on account of such cancellation of service under the provisions of section 34 of the Central Goods and Services Tax Act, 2017 (hereinafter referred to as 'CGST Act') may already have got expired by that time. In such ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses, the supplier may refund the amount to the buyer, after deducting the amount of tax collected by him from the buyer. 1.2 Similar situation may arise in cases of long-term insurance policies where premium for the entire period of term of policy is paid upfront along with applicable GST and the policy is subsequently required to be terminated prematurely due to some reasons. In some cases, the time period for issuing credit note under the provisions of section 34 of the CGST Act may have already expired and therefore, the insurance companies may refund only the proportionate premium net off GST. 1.3 Representations have been received requesting for providing a facility to such unregistered buyers/recipients for claiming refund of amount of tax borne by them in the event of cancellation of the contract/agreement for supply of services of construction of flat/building or on termination of long-term insurance policy. 2. It would be pertinent to mention that sub-section (1) of section 54 of the CGST Act already provides that any person can claim refund of any tax and interest, if any, paid on such tax or any other amount paid by him, by making an application before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the expiry of two years from the relevant date in such form and manner as may be prescribed. Further, in terms of clause (e) of sub-section (8) of section 54 of the CGST Act, in cases where the unregistered person has borne the incidence of tax and not passed on the same to any other person, the said refund shall be paid to him instead of being credited to Consumer Welfare Fund (CWF). 2.1 In order to enable such unregistered person to file application for refund under sub-section (1) of section 54, in cases where the contract/agreement for supply of services of construction of flat/building has been cancelled or where long-term insurance policy has been terminated, a new functionality has been made available on the common portal which allows unregistered persons to take a temporary registration and apply for refund under the category 'Refund for Unregistered person'. Further, sub-rule (2) of rule 89 of Central Goods and Services Tax Rules, 2017 (hereinafter referred to as 'CGST Rules') has been amended and statement 8 has been inserted in FORM GST RFD-01 vide Notification No. 26/2022-Central Tax, dated 26-12-2022 to provide for the documents required to be furnished along wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the application of refund by the unregistered persons and the statement to be uploaded along with the said refund application. 3. In order to ensure uniformity in the implementation of the above provisions of the law across field formations, the Board, in exercise of its powers conferred by section 168(1) of the CGST Act, hereby clarifies the following : 4. Filing of refund application 4.1 The unregistered person, who wants to file an application for refund under sub-section (1) of section 54 of CGST Act, in cases where the contract/agreement for supply of services of construction of flat/building has been cancelled or where long-term insurance policy has been terminated, shall obtain a temporary registration on the common portal using his Permanent Account Number (PAN). While doing so, the unregistered person shall select the same state/UT where his/her supplier, in respect of whose invoice refund is to be claimed, is registered. Thereafter, the unregistered person would be required to undergo Aadhaar authentication in terms of provisions of rule 10B of the CGST Rules. Further, the unregistered person would be required to enter his bank account details in which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he seeks to obtain the refund of the amount claimed. The applicant shall provide the details of the bank account which is in his name and has been obtained on his PAN. 4.2 The application for refund shall be filed in FORM GST RFD-01 on the common portal under the category 'Refund for unregistered person'. The applicant shall upload statement 8 (in pdf format) and all the requisite documents as per the provisions of sub-rule (2) of rule 89 of the CGST Rules. The refund amount claimed shall not exceed the total amount of tax declared on the invoices in respect of which refund is being claimed. Further, the applicant shall also upload the certificate issued by the supplier in terms of clause (kb) of sub-rule (2) of rule 89 of the CGST Rules alongwith the refund application. The applicant shall also upload any other document(s) to support his claim that he has paid and borne the incidence of tax and that the said amount is refundable to him. 4.3 Separate applications for refund have to be filed in respect of invoices issued by different suppliers. Further, where the suppliers, in respect of whose invoices refund is to be claimed, are registered in different States/UTs, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicant shall obtain temporary registration in the each of the concerned States/UTs where the said supplier are registered. 4.4 Where the time period for issuance of credit note under section 34 of the CGST Act has not expired at the time of cancellation/termination of agreement/contract for supply of services, the concerned suppliers can issue credit note to the unregistered person. In such cases, the supplier would be in a position to also pay back the amount of tax collected by him from the unregistered person and therefore, there will be no need for filing refund claim by the unregistered persons in these cases. Accordingly, the refund claim can be filed by the unregistered persons only in those cases where at the time of cancellation/termination of agreement/contract for supply of services, the time period for issuance of credit note under section 34 of the CGST Act has already expired. 5. Relevant date for filing of refund : As per sub-section (1) of section 54 of the CGST Act, time period of two years from the relevant date has been specified for filing an application of refund. Further, the relevant date in respect of cases of refund by a person other than s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upplier is the date of receipt of goods or services or both by such person in terms of provisions of clause (g) in Explanation (2) under section 54 of the CGST Act. However, in respect of cases where the supplier and the unregistered person (recipient) have entered into a long-term contract/agreement for the supply, with the provision of making payment in advance or in instalments, for example-construction of flats or long-term insurance policies, if the contract is cancelled/terminated before completion of service for any reason, there may be no date of receipt of service, to the extent supply has not been made/rendered. Therefore, in such type of cases, it has been decided that for the purpose of determining relevant date in terms of clause (g) of Explanation (2) under section 54 of the CGST Act, date of issuance of letter of cancellation of the contract/agreement for supply by the supplier will be considered as the date of receipt of the services by the applicant. 6. Minimum refund amount Sub-section (14) of section 54 of the CGST Act provides that no refund under sub-section (5) or sub-section (6) shall be paid to an applicant, if amount is less than one thousand rupees. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, no refund shall be claimed if the amount is less than one thousand rupees. 7. The proper officer shall process the refund claim filed by the unregistered person in a manner similar to other RFD-01 claims. The proper officer shall scrutinize the application with respect to completeness and eligibility of the refund claim to his satisfaction and issue the refund sanction order in FORM GST RFD-06 accordingly. The proper officer shall also upload a detailed speaking order along with the refund sanction order in FORM GST RFD-06. 7.1 In cases where the amount paid back by the supplier to the unregistered person on cancellation/termination of agreement/contract for supply of services is less than amount paid by such unregistered person to the supplier, only the proportionate amount of tax involved in such amount paid back shall be refunded to the unregistered person. 8. It is requested that suitable trade notices may be issued to publicize the contents of this Circular. 9. Difficulty, if any, in the implementation of this Circular may be brought to the notice of the Board. Hindi version will follow. Reply By Sadanand Bulbule: The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Reply: Dear Sir Thank you very much for expanding the explanation in the interest of all. Reply By KASTURI SETHI: The Reply: Sh.Sadanand Bulbule Ji, Sir, You have already laid the foundation. Reply By Velayutham Karani: The Reply: thanks everyone for the comment and advices. Some additional info. this is only plot under construction. there is no flat or building. builder made two agreements one for "sale of plot" and other "construction of ammenities"... he put GST in both. when i asked him to show price is exclusive of GST in the agreement, he did not mention. he did not provide GST bill as well. I paid 90% of the total amount include GST for both agreement. but builder did not give GST bills. Reply By Sadanand Bulbule: The Reply: In view of your last post, the simple remedy is to visit the nearest GST office and provide all the relevant documents with payment details in writing. Certainly they would cause proper action as per law. Reply By KASTURI SETHI: The Reply: The querist is again solely dependent upon the builder. In case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the builder deposits amount of tax with Govt., the querist will have to obtain disclaimer certificate'' from the builder. The builder will declare that he has no objection if refund is sanctioned to the buyer. He will also undertake that he will not claim refund from the department. The department does not interfere with the internal dispute between the buyer and the builder. At present the best way-out is to get refund of tax from the builder by way of persuasive method. This is a short-cut method.. Otherwise be prepared to face the rigours of litigation and the litigation is time consuming and full of stress. Reply By Sadanand Bulbule: The Reply: Dear Sir, When I was working in Enforcement wing, a similar buyer approached me with relevant details. Based on that, we conducted investigation against the builder, which busted huge tax evasion. In that backdrop, I suggested the querist to do the same. Otherwise also, the querist is at liberty to follow your advice to seek refund of GST. Reply By KASTURI SETHI: The Reply: Sh.Sadanand Bulbule Ji, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sir, I agree with your views in toto. The basis of your reply is full of substance. It is natural that if the querist visits the Govt. department with documentary evidence, such action can be feared. Some persons may not like to go to that extent. The querist is concerned with his refund of tax paid which was not leviable. Sale of land/plot remained tax-free even in Service Tax era. When an agreement is signed by both parties, it should be read thoroughly and carefully before signing. Two years ago I dealt with similar issue. Both the parties are in RERA Court. because of the complicated language of the agreement. Here we are not aware of the terms and conditions of the agreement executed between both. Litigation should be the last resort. Reply By Sadanand Bulbule: The Reply: Dear Sir ji Very true. We are offering comments on limited information. Our pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pective is always larger than the query.
Reply By KASTURI SETHI:
The Reply:
Dear Sir,
Yes, Sir. The reason behind 'larger perspective' is that experts' advice/guidance consists of characteristics of sincerity, honesty and genuineness. X X X X Extracts X X X X X X X X Extracts X X X X
|
