TaxTMI 
TaxTMI 
2019 (4) TMI 1622
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...., we would like to make it clear that the provisions of both the CGST Act and the MGST Act are the same except for certain provisions. Therefore, unless a mention is specifically made to any dissimilar provisions, a reference to the CGST Act would also mean a reference to the same provision under the MGST Act. Further, henceforth for the purposes Of this Advance Ruling, a reference to "GST Act" would means CGST Act / MGST Act. 02. FACTS AND CONTENTION - AS PER THE APPLICANT The submissions, as reproduced verbatim, could be seen thus- STATEMENT OF FACTS --- Developer: Uijwal Pune Limited ('UPL'), a subsidiary of Tata Projects Limited, is a company incorporated under the provisions of the Companies Act, 2013. Client: The Pune Municipal Corporation (PMC) is the civic body established on 15 February 1950. The executive power of the PMC is vested in the Municipal Commissioner, an Indian Administrative Service (IAS) officer appointed by the Government of Maharashtra. The major responsibility of PMC is to look after the civic and infrastructural needs of the citizens. Project: Pune Municipal Corporation ('PMC') had invited for bids from eligible parties for installation of....
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....tions of PMC. Fully responsibility of warranty of LED's/fixture for Contract Period and Warranty will start from the date of successful commissioning of the switching points. The duration of the Project shall be 12 (twelve) years which shall be deemed as "Contract Period" After completion on the Project Life all material/accessories installed by the Developer during the Project will be property of PMC. The Developer shall follow procedure detailed in this Tender document to hand over the site in satisfactory and working condition to PMC at the end of the Contract Period. Before handing over the site, the developer has to seek 'handing over certificate and 'no dues' certificate from PMC officials. Statement containing the applicant's Interpretation of Law and/or facts - As per the Sl.no.3(vi)(a) of notification no. 11/2017 - Central Tax (Rate) dt.28th June 2017 amended with notification no.24/2017-CentraI Tax (Rate) dt 21.09.2017 and further amended with notification no. 31/2017-CentraI Tax (Rate) dt 13.10.2017, tax rate of 12% applicable in case of Composite supply of Works Contract as defined in clause(119) of section 2 of the Central Goods and Services Tax Act, 2017, pr....
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....uction, fabrication, completion, erection, installation, fitting out, improvement, modification, repair, maintenance, renovation, alteration or commissioning of any immovable property wherein transfer of property in goods (whether as goods or in some other form) is involved in the execution of such contract. Works contract, being composite supply involving both supply of goods and services relating to immovable property would constitute a service and accordingly liable to tax as per the provisions of the Act. Immovable property is not defined in GST Act. Section 3(26) of The General Clauses Act, 1987, defines, "Immovable Property" shall include land, benefits to arise out of the land, and things attached to earth, or predominantly fastened to anything attached to the earth. Also, as per Section 2(6) of The Registration Act, 1908, immovable property includes land, buildings, hereditary allowances, rights to way, lights, ferries, fisheries or any other benefit to arise out of land, and things attached to the earth or permanently fastened to anything which is attached to earth, but not standing timber, growing crops or grass. In general terms, Immovable property cannot be tran....
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....ce, Industry or any other business or profession? Section 2(17) of CGST Act, defined business to include - (a) any trade, commerce, manufacture, profession, vocation, adventure, wager or any other similar activity, whether or not it is for a pecuniary benefit; (b) to (h) (i) any activity or transaction undertaken by the Central Government, a State Government or any local authority in which they are engaged as public authorities. However, as per the explanation given vide notification no. 17/2018 - Central Tax (Rate), dated 26th July, 2018, For the purposes of item sl.no.3, in column (3), in item (vi) of notification no. 11/2017 - Central Tax (Rate) dated 28.06.17, the term 'business' shall not include any activity or transaction undertaken by the Central Government a State Government or an local authority in which they are engaged as public authorities." Public Authority has not defined in GST Act. Pune Municipal Corporation is Local Authority, established as civic body with major responsibility to look after the civic and infrastructural needs of the citizens. Morever, nature of contract and objectives & benefits accrued from the project is, * To upgrade existi....
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....r appeared and requested for admission of application as per contentions made in their application. Jurisdictional Officer was not present. The application was admitted and called for final hearing on 19.12.2018, Sh. Santanu Chakravarti, Asstt. Vice President along with Sh. Dinesh Mutha, Asstt. General Manager appeared made oral and written submissions. Jurisdictional Officer Sh. Mangat Dy. Commr. Div - III, CGST &C.EX., Navi Mumbai appeared but did not make any written submissions. 05. OBSERVATIONS We have gone through the facts of the case, documents on record and written submission made by the applicant. Based on the same we discuss the issue put before us by the applicant. The first question raised by the applicant is whether their activity, under the subject contract entered into by them with the PMC, is covered under Entry no. 3(vi) (a) of Notification No. 11/2017 - Central Tax (Rate) dated 28th June 2017 as amended with Notification No.24/2017-Central Tax (Rate) dated 21.09.2017 and further amended with Notification No. 31 (2017-CentraI Tax (Rate) dt 13.10.2017, by which tax rate of 12% is applicable. To answer this question, we have to decide whether the activity e....
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....act ................... 6 (v) Composite supply of works contract as 6 defined in clause. (119) of section 2 of the Central Goods and Services Tax Act, 2017, supplied by way of construction, erection, commissioning, or installation of ORIGINAL WORKS pertaining to, (a) railways, excluding monorail and metro ..................... 6 (vi) composite supply of works contract as defined in clause 119 Of section 2 of Central Goods and Services Tar Act, 2017 provided to the Central 6 Government, State Government, Union Territory, a local authority or a governmental authority by way of construction, erection, commissioning, installation, completion, fitting out, repair, maintenance, renovation, or alteration of- (a) a civil structure or any other original works meant predominantly for use other than for commerce, industry, or any other business or profession; (b) a structure meant predominantly for use as (i) an educational, (ii) a clinical, or(iii) an art or cultural establishment; or (c) a residential complex predominantly meant for self-use or the use of their employees or other persons specified in paragraph 3 of the Schedule III of the Central Goods and Serv....
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....project, such as, all necessary fixtures and LEDs to be supplied by the applicant shall be as per the prescribed technical conditions mentioned in the Tender documents. c) Further, the material procured by the applicant shall be open to PMC officials for inspection and testing at the factory before its dispatch. d) The applicant is responsible for the replacement and maintenance of street lights. e) All the Old fixtures would be replaced with new LEDs/fixtures and the applicant-developer would be responsible for the disposal of old fixtures in most scientific and environmentally safe condition. f) The applicant will have to take full responsibility of warranty of LEDs/fixtures during the contract period and the products used shall carry details, embossed thereon, like year of manufacture, batch number, serial number, name of the manufacturer, rated wattage and voltage, etc. g) The applicant-developer is required to maintain minimum storage space for stand by LED Lighting Fixtures to the extent of a minimum of 3% of all types of installations. From the analysis of the terms of the contract we find that the contract would involve more than two taxable supplies such a....
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....supply is a works contract as defined u/s 2(119) of the GST Act. As per Section 2 (1 19) Works contract means a Contract for building, construction, fabrication, completion, erection, installation, fitting out, improvement, modification, repair, maintenance, renovation, alteration or commissioning of any immovable property wherein transfer of property in goods (whether as goods or in some other form) is involved in the execution of such contract. We find that PMC had contracted with the applicant for Supply, Installation and commissioning of Energy Efficient dimmable LED Street lights along with pet feeder basis SCADA system in Pune, on a design, build, finance, operate, maintain & transfer basis for period of 12 years. The new LED lighting system was to be installed in place of the old fixtures (lighting systems) which would be dismantled and disposed of by the applicant. From an examination of the terms and conditions of the subject contract, we find that the applicant would be making a single supply of providing energy efficient lighting to the PMC for a 12 year period and would primarily include supply and Installation of Energy Efficient dimmable LED Street lights saving equ....
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....efit to arise out of land, and things attached to the earth or permanently fastened to anything which is attached to earth, but not standing timber, growing crops or grass and also Section 3(26) of The General Clauses Act, 1987, which defines, "Immovable Property" shall include land, benefits to arise out of the land, and things attached to earth, or predominantly fastened to anything attached to the earth. Further it is seen that the applicant themselves have submitted that they earn revenue based on the energy savings through LED installations by replacing existing lighting system on electric pole which is attached to the earth and the existing poles shall be used for installing the LED based street lighting fixtures using the existing cables without compromising on existing aesthetics look. Thus their submissions clearly reveal that the earlier lighting systems are only replaced by the new LEDs/fixtures e LED fixtures without any damage to the electric poles. This goes against their submissions that removal of such LED fixtures lead to damage. They have also argued that their LEDs/fixtures do not have any commercial value due to its non-usefulness for any other purpose and the....