I. HIGH COURT
1. [2019
(31) GSTL 397 (Ker.)]
Relcon
Foundations (P) Ltd. vs. Asst. State Tax Officer, Kasargod
Date
of order: 8th November, 2019
Goods and vehicle cannot be
detained or seized on the ground of non-filing of Form GSTR1 and Form GSTR3B
FACTS
The writ
petition was filed against the order for detention and notice proposing
confiscation of goods belonging to the petitioner which were detained in
transit on the ground of non-filing of Form GSTR1 and Form GSTR3B.
HELD
The Hon’ble
High Court of Kerala held that non-filing of Form GSTR1 and Form GSTR3B cannot
form the basis for issue of an order for detention of goods u/s 129 as well as
notice proposing confiscation of the goods, since the ingredients of the
offence covered u/s 130 were not satisfied in the instant case.
2. [2019
(31) GSTL 60 (Guj.)]
Thermax
Ltd. vs. Union of India
Date
of order: 11th February, 2019
Central Excise Duty paid
erroneously should be treated as voluntary deposit and refund thereof should be
made in cash during GST regime instead of crediting it in CENVAT account
FACTS
The
petitioner exported boilers and therefore claimed rebate of excise duty which
was not required to be paid. The rebate claim was rejected by the revisional
authority; however, on the ground that Government cannot retain an amount which
is not due to it, it was directed to re-credit the amount in the petitioner’s
CENVAT credit account. However, with the introduction of GST, the CENVAT credit
account has become redundant, and therefore, the petitioner contested that
CENVAT credit should have been paid in cash.
HELD
The Hon’ble
Court held that duty which was not required to be paid needs to be treated as a
voluntary deposit. Hence, the Court relied on section 142(3) of the CGST Act
and directed the sanctioning authority to refund the amount of duty, which was
erroneously paid, in cash instead of crediting the same in the petitioner’s
CENVAT account.
II.
ADVANCE RULINGS
3. [2019
(31) GSTL 554 (AAR-GST)]
In
Re. Maarq Spaces Pvt. Ltd.
Date
of order: 30th September, 2019
Supply of services by way of
development of land provided under a joint development agreement where the
title of the land rests with the landowner, shall be liable for GST and the
value of supply shall be the total revenue share as per provisions of Rule 31
of the CGST Rules, 2017
FACTS
The
applicant, a private limited company engaged in the business of property
development, entered into a joint development agreement with the landowners for
development of plots which included survey of land, clearing and levelling the
site, laying sewage / water pipelines, etc. The revenue accrued from the sale
of the plots was agreed to be shared amongst the landowners and the applicant
in the ratio of 75% for the landowners and 25% for the applicant.
The
applicant sought advance ruling in respect of two questions: whether the
activity of land development along with sale of land is a taxable supply, and
if such activity is a taxable supply, whether provisions of Rule 31 are
applicable in ascertaining the value of the land and supply of service. The
applicant submitted that as per section 2(30) of the CGST Act, 2017 defining
composite supply, the sale of land being the principal supply and land and
developmental activity being incidental to the sale of land, the transaction
undertaken by the applicant is excluded from the scope of ‘supply’ under Entry
No. 5 of Schedule III. However, if at all the transaction attracts GST, then
the value can only be determined as per Rule 31 of the CGST Rules, 2017.
HELD
The
authority of advance ruling, placing reliance on the salient provisions of the
agreement, inferred that the activity actually carried out by the applicant is
that of development of land and not sale of land. The provisions of the
agreement clearly indicate that the applicant had a right only over the share
of revenue from the sale of the plot of land and not over the land. As the
applicant cannot be considered as the owner of the plot, the transaction cannot
be considered as ‘sale of land’; therefore, it is not covered under Entry No. 5
of Schedule III of the CGST Act, 2017.
Thus, the
activities undertaken by the applicant as provided in the agreement amount to
supply of service to the landowners and are a taxable supply under GST. It was
further inferred by the authority that Rule 31 applies in the instant case and
the taxable value of the supply of services by the applicant to the landowners
is equal to the consideration received by the applicant, i.e., 25% of the sale
value of the plots.
4. [2019
(31) GSTL 154 (AAR – West Bengal)]
Rabi
Sankar Tah
Date
of order: 21st October, 2019
Co-owner’s share of rental income
in jointly-owned property cannot be clubbed for determining the threshold limit
for GST registration
FACTS
The
applicant, one of the co-owners of a jointly-owned property, received his share
of rental income. The total rent received by all co-owners together exceeded
the threshold limit for obtaining GST registration u/s 22(1) of the CGST Act,
2017 but the share of each of the three co-owners did not cross the said
threshold limit. The applicant sought advance ruling on whether he and the
other two co-owners were to be treated as an association of persons (AOP) or a
body of individuals and, therefore, were a ‘person’ defined u/s 2(84) of the
GST Act and liable for GST registration.
HELD
The Authority of Advance Ruling relied on the ruling
of Elambrancheri Khaldoon, 2018 (18) GSTL 152 (AAR – GST) and
held that the co-owners of the property cannot be treated as an AOP when income
from renting was separately ascertained and assessed for income tax
individually in the hands of each co-owner. Thus, the threshold limit is to be
ascertained separately, depending on the individual gross turnover for GST
registration.
