TaxTMI 
TaxTMI 
TaxTMI 
2020 (7) TMI 200
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....ce generated by the Applicant? At the outset, 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 to the earlier, henceforth for the purposes of this Advance Ruling, the expression "GST Act" would mean CGST Act and MGST Act. 2. FACTS AND CONTENTION - AS PER THE APPLICANT The submissions of the applicant as under:- 2.1 Applicant is a co-operative housing society, registered under the Maharashtra State Co-operative Societies Act, 1960 and formed by its members who are the shareholders. The main object of the Applicant Society, as per the Bye Laws are extracted below for ready reference: a. To obtain conveyance from the Promoter (Builder), in accordance with the provisions of the Ownership Flats Act and the Rules made thereunder, of the right, title and interest, in the land with building/buildings thereon b. To manage, maintain and administer the property of the society; c. To raise funds for achieving the objec....
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....ties or benefits have indeed been provided by the society to its members. In the present case applicant does not provide any facilities or benefits to its members. It merely manages the housing society and thus cannot be considered to be doing any business. 2.11 Further, applicant has submitted that, the definition of 'business' also fails on the touchstone of the 'principal of mutuality'. The Supreme Court, in the number of cases has held, by applying the principals of mutuality, that a housing society cannot be said to the providing any services to its members. Thus, the activities carried out by the applicant do not amount to supply & are not liable for GST. 2.12 The applicant made Additional written submissions on 07.01.2020 as under:- 2.12.1 The activities carried out by the Applicant for its members does not amount to supply as per a plain reading of the term "supply" under Section 7(1), and hence not liable for GST. Supply is an inclusive definition encompassing all kinds of supply, however only those transactions which are for consideration and in the furtherance or course of business will qualify as supply. The society charges levied on the members as per the Bye Laws i....
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.... Alternatively, without prejudice, if the Applicant Society is held to be supplying services to its members, then the invoices raised by the Applicant Society will not include the deduction claimed and exclusions »lade in the said invoices. 03. CONTENTION - AS PER THE JURISDICTIONAL OFFICER The submissions made by the jurisdictional office is as under:- 3.1 As per the definition of the term "person", in terms of Section 2(84) of the CGST Act, 2017, in the instant case, there are two distinct persons, one the Applicant Society and another is the member thereof. Though the Applicant has contended that the Applicant Society and its members cannot be treated as distinct persons, by making reference to the principle of mutuality, all court rulings cited by the Applicant were in connection with the Income Tax matters. The concern is only with the element of service, if any, rendered by the Co Operative Housing Society to its members against some consideration, which may be in the form of the monthly or quarterly charges. Therefore, the contention made by the Applicant with regard to the principle of mutuality to establish their claim that the Applicant Society and its member a e....
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....e institution for its members has been made in the course of business only. Both the conditions stipulated for the "Supply" under the GST Law have been fulfilled which leads to the conclusion that the transaction between the Applicant and its members are nothing but supply, and accordingly will attract GST. 04. HEARING Preliminary hearing in the matter was held on 14.11.2019. Sh. Rahul Thakar, Advocate appeared and informed the Bench that he was not carrying the concerned file for making his argument. Hence, the matter was adjourned to 26.11.2019. Sh. C B Thakar, Advocate appeared and requested for admission of the application. Jurisdictional Officer, Sh. Samara Pilankar, Supdt., Division -VIII, Range-III, Commissionerate Mumbai South CGST, Mumbai, appeared and gave written submissions. The application was admitted and called for final hearing on 07.01.2020, Sh. C B Thakar, Advocate appeared and made oral and written submissions. Jurisdictional Officer Sh. Raju Khobragade, Supdt., Division-VIII, Range-I, Commissionerate Mumbai South CGST, Mumbai also appeared and made written submissions. 05. OBSERVATIONS 5.1 We have gone through the facts of the case, documents on record and ....
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....nd (d) ...........................; (2) Notwithstanding anything contained in sub-section (1),- (a) activities or transactions specified in Schedule III; or (b) ........................... (3) Subject to the provisions' of sub-sections (1) and (2), ...........................; 5.5.3 The term "Supply", defined under Section 7 of the CGST Act, 2017 is an inclusive definition and not an exhaustive one and therefore it has very wide connotations. Therefore, the activities of Applicant in as much as they are obtaining conveyance from the promoter (Builder), managing, maintaining and administering the property of the society, raising fund for achieving the objects of the society, undertaken and providing any social, cultural or recreation activities can clearly be considered as rendering of "supply" of service being provided to its members. 5.5.4 We find from the definition of "supply" that, to be considered so, such supply should be made by a person, for a consideration and should be made in the course or furtherance of business. Thus we have to find whether; the Applicant can be considered as a 'person'; whether the amounts collected from their members can be treated ....
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....ion 2(17) (e) of the CGST Act, 2017, `provision by a club, association, society, or any such body (for a subscription or any other consideration) of the facilities or benefits to its members is deemed to be a 'business'. In the subject case, we find that the applicant is making supply to its members and receiving consideration for the same. Further, as per the definition of "business" reproduced above, we also find that the various activities undertaken by the applicant for the benefit of its members will come under the scope of business. 5.11 In view of the above we are of the opinion that all the conditions is stipulated for considering the activities of applicant as "Supply" under the GST Law have been fulfilled. 5.12 Applicant has contended that the Applicant Society and its members cannot be treated as distinct persons, by citing the "principle of mutuality". We have already found above that both, the Applicant as well as its members are to be considered as separate person. The contention made by the Applicant with regard to the principle of mutuality to establish their claim that the Applicant Society and its member are not distinct entity is not tenable in so far as taxabi....
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....) TMI 15 - BOMBAY HIGH COURT. e) Decision of Hon'ble Calcutta HC in the case of Commissioner of Income Tax Vs. Apsara Co-operative Housing Society Ltd. = 1993 (5) TMI 19 - CALCUTTA HIGH COURT. f) Decision of Hon'ble Apex Court in the Commissioner of Income Tax, Bihar Vs. Bankipur Club Ltd. = 1997 (5) TMI 392 - SUPREME COURT. 5.14.1 It is seen that all the case laws mentioned at (a) to (f) above portain to Income Tax Matters and will not be applicable in the subject case. 5.15 Applicant has also relied upon the judgements of the concerned Hon'ble High Courts in the case of Saturday Club Ltd. Vs. Assistant Commissioner, Service Tax Cell, Calcutta & Ors = 2004 (6) TMI 11 - HIGH COURT CALCUTTA as well as in the case of Sports Club of Gujarat Ltd. Vs. Union of India (2010) 35 VST 75 (Guj HC) = 2009 (8) TMI 667 - GUJARAT HIGH COURT to emphasize that their activities are not liable to GST in view of the principle of mutuality. 5.15.1 In this regard, we find that both the Above two cases pertain to the period prior to 2012 and deeming provision was introduced with effect from 01.07.2012, to the effect that club and members are deemed to be separate persons. 5.15.2 We find that the ju....
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....ud, the Appellate Authority = 2019 (11) TMI 420 - APPELLATE AUTHORITY FOR ADVANCE RULING MAHARASHTRA has finally come to a conclusion that only the membership fee, collected by M/s. Lions Club of Poona Kothrud from its members, will not be construed for levy of GST since the said membership fees are "being utilized only for paying Members' meeting expenses for formulations of policies and directions. Administrative expenses (printing of circulars, fees payable to international office and multiple office)), office supplies, (stationery, postage) communication (greetings) and such other incidental expenses for updating education for the purpose of carrying on service activities in a better manner." 5.16.2 In the subject case, first of all there is no collection of me membership fees. Further, the applicant has not mentioned that they are undertaking any administrative expenses. Both, collection of membership fees and utilization of the same for administrative purposes are facts of the matter in the Lions Club case but not in the subject matter. 5.16.3 We therefore feel that the decision of the Authority in the case of M/s Lions Club, Kothrud is not applicable in the instant case. S....