Description

Related Information

Order dated 05/10/2018

Issue:
(i) Whether the applicant is liable to pay GST on sale of commercial super built up area on behalf of MoHUA, Government of India, by considering the applicant also as the supplier of service while selling such commercial built-up space as an agent on behalf of the Government of India in the colonies under redevelopment.

(ii) Whether the MoHUA, Government of India, is liable to pay GST on sale of commercial built-up space, and whether it relates to any function entrusted to a municipality under Article 243W of the Constitution.

(iii) Whether the applicant is liable to pay GST on sale of built-up space for which part of the consideration was received prior to 01.07.2017, and partly on or after 01.07.2017

(iv) Whether the applicant is liable to pay GST on consideration received under an agreement to sale of constructed units in a building which is under construction.

Crux:

(i). The applicant is covered in the definitions of “Agent” under Section 2(5), “Supplier” under Section 2(105) and “Taxable Person” under Section 2(107) of the CGST Act, 2017 in respect of the said project while providing services on behalf of the Ministry of Housing and Urban Affairs. Hence, they are liable to pay GST under Section 9(1) of the CGST Act, 2017.

(ii). The MoHUA, Government of India, is not exempted from payment of GST on sale of commercial built-up space, as it does not relates to any function entrusted to a municipality under Article 243W of the Constitution. Hence, the exemption under S. No. 4 of Notification No. 12/2017 - Central Tax (Rate) and parallel notifications under SGST and IGST are not admissible. After amendment of S. No. 4 of the said Notification by Notification No. 14/2018 -Central Tax (Rate) dated 26.07.2018, only services provided by “governmental authority” are exempted which does not cover the MoHUA. Further, MoHUA, Government of India is not a Municipality under Articles 243P and 243Q of the Constitution. Also, since, such services are being provided to business entities, exemption under S. No. 6 of the said Notification is also not admissible.

(iii). The applicant is liable to pay GST on the services supplied under GST regime i.e. w.e.f 01.07.2017, even if part of the consideration had been received prior to 01.07.2017.

(iv). The applicant is liable to pay GST on the sale of commercial built-up area which is under construction, as the same is a ‘supply of service’ under clause 5(b) of Schedule II of the CGST Act, 2017.

Order

Summary
 

Notification No. 12/2017 Central Tax (Rate)

Notification No. 14/2017 Central Tax (Rate)

Section 2 of CGST

Schedule II of CGST

Order dated 28/06/2018

Issue:

1.Whether in Case of 'Accommodation Only' Services, GST will be charged @ 18% on only the Service Fee / Convenience Fee charged by the applicant, if the applicant satisfies the conditions of Pure Agent?

2. Is there any option available to a ‘Tour Operator’ to either charge GST@ 5% (with no ITC) or charge GST @ 18% (with full ITC)?

Crux:

1. The applicant is supplying booking of hotel accommodation services. They are admittedly paying GST @ 18% (9% CGST + 9% SGST) on service fee / convenience fee / commission received from clients and also on target based sales commission received from the foreign hotel aggregators (DOTW). The value of 'hotel accommodation' paid by the client to them, which is remitted by them to the foreign hotel / hotel aggregator cannot be included in such taxable value, provided the conditions of pure agent are satisfied.

 2.The applicant is required to collect/ deposit GST under Section 9(1) of the CGST Act, 2017 on the amount received by them from the clients on the value of 'hotel accommodation' service, while acting as an agent under Section 2(5) of the said Act being "taxable person" defined under Section 2(107) of the said Act and "supplier" defined under Section 2(105) of the said Act.

3. The ‘tour operators services’ are covered under entry (i) of S. No. 23 of Notification No.11/2017-Central Tax (Rate) dated 28th June, 2017 and they are required to pay GST @ 5% (2.5% CGST + SGST) (without ITC) subject to fulfillment of conditions and they are not covered under entry (ii) of the S. No. 23 of the said Notification before 25.01.2018 and entry (iii) of S. No. 23 of the said Notification from 25.01.2018 and hence option to pay GST @ 18% (9% CGST + 9% SGST) (with ITC) is not available to them.
 

Order

Summary
 

Notification No. 11/2017 Central Tax (Rate)

Order dated 28/06/2018

Issue:
1.Whether Goods and Services Tax shall be leviable / chargeable on the transaction / agreement as per provisions of Central Goods and Service Tax Act, 2017?   
2.If Yes, Whether the transaction can be exempted in whole or in parts, referring to specific provisions enumerated in exemption notification?

Crux:
1.The amount received by the applicant from AICL is not in the nature of grant-in aid and is covered in the definition of “consideration” for the supply of goods or services under Section 2(31) of the CGST Act, 2017 in respect of the MoU dated 16.01.2017. Hence, they are liable to pay GST under Section 9(1) of the CGST Act, 2017.

2. The said supply of goods or services are not exempted from the payment of GST under S. No. 1 or S. No. 76 of the Notification No. 12/2017 — Central Tax (Rate) dated 28.06.2017 and parallel notifications under SGST and IGST. Hence. the applicant is liable to pay GST on the supply of goods or services under the MOU dated 16.01.2017 entered by them with AICL.

Order

Summary
 

Notification No. 12/2017 Central Tax (Rate)

VPSSR facilities  v/s  Mr. Pankaj Jain Member (Centre) & Mr. Vinay kumar Member (State)

Order dated 23/04/2018

Issues :-  1. Whether contract for railway station sanitation or cleaning, train cleaning and railway premises cleaning would be exempt vide s.no. 3 of Notification no. 9/2017 of Integrated Tax (Rate)?

2. What would be the impact of exemption if above contract is pure service contract or work contract (involving sanitation labour and material)?

Crux :-  Cleaning Service supplied by the applicant to the Northern Railways are not exempted under S.No. 3 of the Notification No. 09/2017 - Integrated Tax (Rate) dt. 28.06.17, as amended by Notification No. 2/2018 - Integrated Tax ( Rate) dt. 25.01.18.

Order

Summary
 

Notification No. 09/2017 Integrated Tax (Rate)

Order Dated 06/04/2018

Issues:-

a) Whether the book 'Sulekh Sarita' is classified as 'Printed Books' under HSN 49011010 or as 'Exercise Book' under HSN 4820 of the GST Tariff?

b) Whether any person who is dealing exclusively in supply of goods that are wholly exempt from tax, is required to take registration under the GST Act?

Crux:-

a) The product supplied by the applicant 'Sulekh Sarita' are classified under HSN 4820 and not under HSN 4901 or 4903. Hence they are not covered under entry no. 119 or 121 of Notification No. 2/2017 - Central Tax (Rate) dated 28.06.17.

b) The applicant is liable for registration, if it has liability under Reverse Charge Mechanism for GST irrespective of the situation that it has no liability to pay GST as supplier of goods and/or services.

Order

Summary
 

Notification No. 01/2017 Central Tax (Rate)

Notification No. 02/2017 Central Tax (Rate)

AR of Punjab
M/s Evergreen Publication (India) Ltd.
(Summary)

Order dated 06/04/2018

Issues:-

a) Whether 'Dried Tobacco Leaves' on which cleaning removal of unwanted particles has been done would be classified under Tariff Item/Heading 2401 as Tobacco Leaves' or ' All goods not specified elsewhere' as mentioned in Notification No. 01/2017- Central Tax (Rate) dt. 28.06.17.

b) Whether GST on such 'Dried Tobacco' would be levied @ 5% or 28% under chapter 24 Tariff item 2401 under Notification No. 01/2017- Central Tax (Rate) dt. 28.06.17.

Crux:-

a) The 'Dried Tobacco Leaves'  which has undergone the process of curing after harvesting of tobacco leaves are 'unmanufactured tobacco' covered in HSN code 2401.

b) They are not covered under S. No. 109 of schedule -1 of Notification No. 01/2017- Central Tax (Rate) dt. 28.06.17 @ 5% IGST. The same are covered under S. No. 13 of schedule - IV of the said Notification as 'un manufactured tobacco' (other than tobacco leaves) @ 28% IGST.

Order

Summary
 

Notification No. 01/2017 Central Tax (Rate)

AR of Andhra Pradesh
M/s Pragathi Enterprises
Summary

Shri Sanjeev Sharma v/s  Mr. Pankaj Jain Member (Centre) & Mr. Vinay kumar Member (State)

Order dated 28/03/2018

Issues :-

a) Whether GST will be applicable on the sale of undivided and impartible share of land represented by agreement to sell the land?

b) Whether GST shall be applicable on the sale of superstructure (which is under construction)?

c) Determination of value on which tax is payable and applicable rate of tax?

Crux :-

a) As per Section 7 of CGST Act read with Schedule III paragraph 5, sale of land is not covered under the scope of supply and hence on sale of land, no GST is payable. Similarly, sale of undivided portion of land is also outright sale of immovable property and hence outside the scope of GST.

b) As per section 7(1)(d) of CGST Act read with paragraph 5(b) of Schedule II specifically provides that supply of goods or services include construction of a complex, building, civil structure or a part thereof, including a complex or building intended for sale to a buyer, wholly or partly, except where the entire consideration has been received after issuance of completion certificate or after its first occupation, whichever is earlier. Hence if construction activity is done on behalf of the buyer i.e. as a supply of goods or services to a buyer, GST is payable.

c) As per Notification 11/2017- Central Tax (Rate) GST would be payable @ 18% (9% CGST and 9% SGST) on two third of the total consideration charged for the supply of goods or services. The value of land would be deemed to be one third of total amount and is excluded from value for the purpose of charging GST.

Order

Summary
 

Schedule II of CGST Schedule III of CGST

Notification No. 11/2017 Central Tax (Rate)

AR of Goa
Quattroporteluxury Homes LLP
(Summary)

Order dated 28/03/2018

Issues:-

a) Determination of rate of tax on supply of food through Food Plaza (with A/C)/ Food Stalls (without A/C) on the Railway platform?

b) Determination of rate of tax on supply of food (cooked/ MRP/ packed) on board the Rajdhani trains?

c) Determination of rate of tax on supply of food (cooked/ MRP/ packed) on board the Mail/express trains?

d) Determination of applicable Rate of Tax on supply of newspaper the price of which is included in the fare of the ticket?

Crux:-

a) The supply of food and beverages at food stalls at Railway platform does not have any element of service and are considered as pure supply of goods and GST shall be charged on individual items at their respective applicable rates. In absence of relevant documents, no ruling is given on supply of food in food plaza.

b) Service is classified under 996335 as Catering service in train as per Notification no. 11/2017 Central Tax (Rate) vide s.no. 7(ix). The supply of goods i.e. food, bottled water etc shall be charged to GST as pure supply of goods at applicable rates.

c) The supply of food and beverages on board the Mail/express trains does have any element of service and are considered as pure supply of goods and GST shall be charged on individual items at their respective applicable rates.

d) The supply of Newspaper is separately invoice and hence it shall be taxed at 'NIL' GST under S.no. 120 of Notification No. 2/2017-Central Tax (Rate) dt. 28.06.17.

Order

Summary
 

Notification No. 11/2017 Central Tax (Rate)

Notification No. 02/2017 Central Tax (Rate)

Order No. 2/2018 of CGST

Circular No.50/24/2018-GST

Order dated 27/03/2018

Issues:- Whether  the supply of sunglasses from the retail outlet at Terminal 3, IGI Airport, New Delhi to outbound international passengers against the international boarding pass is liable to SGST under the DGST Act 2017 and CGST under the CGST Act 2017 or it is a zero rated 'export' supply with in the meaning of section 2(23) r/w section 2(5) of the IGST Act 2017.

Crux:-  The said outlet is not outside India, but the same is within the territory of India as defined u/s 2(56) of the CGST Act 2017 and section 2(27) of Custom Act 1962 and hence the applicant is not taking goods outside India and hence their supply cannot be called "export" u/s 2(5) of the IGST Act 2017 or 'Zero rated supply' u/s 2(23) and section 16(1) of the IGST Act 2017.

The applicant is liable to pay GST at the applicable rates.

Order

Summary

Section 2 of CGST

Section 16 of IGST

AR of Andhra Pradesh
Fairmacs Ship Stores Private Limited
(Summary)

AR of Andhra Pradesh
M/s Parsan Brothers
(Summary)