2019-TIOL-GST-291 Dated: Thursday, July 04, 2019

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GST CASES

HIGH COURT CASES

2019-TIOL-1378-HC-MP-GST

Om Shiv Associates Vs UoI

CGST - The petitioner seeks quashment of notice for personal hearing and direction for Authorities to decide his representation before initiating any proceedings - The submissions when tested on the anvil of stipulation contained under Section 70 of (CGST) Act, 2017 which stipulates that the proper officer under this Act shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry in the same manner, as provided in the case of civil court under the provisions of Code of Civil Procedure, 1908 and Subsection (2) of Section 70 of the Act of 2017 envisages that every such inquiry referred to in Sub-section (1) shall be deemed to be a "judicial proceedings" within the meaning of section 193 and section 228 of Indian Penal Code and the fact as borne out from the record that, prima facie, opinion has been formulated that the petitioner has evaded the tax, court is not inclined to cause any indulgence - The petitioner has utterly failed to establish that the proceedings under Section 70 of (CGST) Act, 2017 can only be taken recourse to after decision under Section 73 of the Act: HC

-Petition dismissed : MADHYA PRADESH HIGH COURT

AAR CASE

2019-TIOL-200-AAR-GST

Bandai Namco India Pvt Ltd

GST - Applicant seeks an advance ruling on the applicable GST rate on Operating Gaming zone in Malls.

Held: Applicant has stationed in the Oberoi mall various gaming equipment and machines for different age groups consisting of kids, teenagers and adults and these machines are either coin operated or card operated - through the various equipment/machine, the applicant allows the interested person to enjoy various games - Notification 11/2017-CTR as amended by 1/2018-CTR prescribes CGST tax rates of 9% and 14% in respect of “services by way of admission to amusement parks” and “services by way of admission to entertainment events or access to amusement facilities” respectively - term “amusement park” has not been defined under the CGST Act but section 2(a-1) of the Bombay Entertainment Act defines the same as meaning a place wherein various types of amusements including games or riders or both are provided fairly on permanent basis on payment for admission - although the word “amusement” is common in both the expressions, it is worthwhile to know the difference between “park” and “facility” - “park” is a ‘large area of land for a particular purpose' whereas ‘facility' is a place, building, equipment or an amenity for a particular purpose - in the present case, the applicant has placed equipment in an area within the Oberoi mall, therefore, there is no second thought to call it an “amusement facility” rather than an “amusement park” - Services provided by the applicant on operating gaming zone in a mall is correctly chargeable under Heading 9996 @28% GST: AAR

- Application disposed of: AAR

NAA CASES

2019-TIOL-45-NAA-GST

Director General Of Anti-Profiteering Vs Signature Builders Pvt Ltd

GST - Anti-Profiteering - Section 171 of the CGST Act - Applicant alleges profiteering by respondent in respect of supply of construction services related to purchase of Flat (affordable house) in the project built by the respondent - Respondent has claimed that they have not availed benefit of ITC during the pre-GST period and the same was availed only after the coming into force of GST - since there was no basis for comparison of ITC available before and after 01.07.2017, the respondent was not required to recalibrate the price of the flat due to additional benefit of ITC - Entitlement of the applicant to claim benefit of ITC would only arise if there was any additional benefit of ITC to the respondent post-GST - Since the respondent has opted to continue with the old tax rate of 8%, the clarification given in FAQ no. 16 by CBIC dated 14th May 2019 in the matter of reduced rates of tax on Construction service does not apply - contention of applicant that respondent ought to have paid GST @1% instead of @8% and should have passed on the benefit of ITC is unreasonable as the respondent is entitled by law to opt for paying GST @8% and charge it from his customers accordingly - As per the terms of the agreement, the applicant is bound to pay the GST in addition to the sale consideration and hence he cannot claim that he should be passed on the benefit of ITC @8% - implication of ITC has already been considered by the respondent while fixing price of the flat post-GST and hence no benefit of ITC is due to the applicant - In terms of s.171 of the Act, there should either be reduction in the rate of tax or benefit of ITC which is required to be passed on to recipients by commensurate reduction in price - since there has been no reduction in rate of tax or benefit of additional ITC, provisions of s.171 are not attracted and allegation of profiteering is not established: NAA

- Application dismissed: NAA

2019-TIOL-44-NAA-GST

Director General Of Anti-Profiteering Vs Vatika Ltd

GST - Anti-Profiteering - It is revealed from the records that the respondent had completed the apartment project “Independent Floor Phase-II” prior to implementation of GST and he had neither availed ITC on any of the inputs procured in the GST regime nor had he availed/carried forward the pre-GST credit pertaining to the stock held in hand as on 30.06.2017 - Therefore, the respondent is not liable to pass on the benefit of ITC to the applicants - Provisions of s.171 of the CGST Act, 2017 have apparently not been contravened by the respondent as the same are not even applicable - Allegation levelled by the applicant(s) that the respondent has not passed on the benefit of ITC is, therefore, not sustainable - Application is not maintainable, hence dismissed: NAA

- Application dismissed: NAA

GST REFUND

GST Refunds & Other Payments to Taxpayers

CGST RULES

CGST Rules 2017 Part-A (Forms) [As amended upto 28th June, 2019]

CGST Rules 2017 Part-B (Forms) [As on 28.06.2019]

KERALA FLOOD CESS

G.O.(P) No.96/2019/TAXES

Kerala Flood Cess (Second Amendment) Rules, 2019

ARTICLES

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