TaxTMI 
TaxTMI 
TaxTMI 
2020 (9) TMI 352
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....on-air conditioned bus? 3. If ITC is available as per question no. (1) Above, whether it will be restricted to the extent of cost borne by the Applicant (employer)? 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 purpose of this advance Ruling, the expression 'GST Act' would mean CGST Act and MGST Act. FACTS AND CONTENTION - AS PER THE APPLICANT The submissions made by the applicant are as follows:- Applicant has engaged service providers to provide transportation facility to its employees, in non-air conditioned buses having seating capacity of more than 13 person. Sr. No. 15 (b) of Notification No. 12/2017-C.T. (Rate) dated 28.06.2017 exempts service provided for "transport of passengers, with or without accompanied belongings, by non-air-conditioned contract carriage other than radio taxi, for transportation of passengers, excluding tourism, conducted tour, c....
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....GST Act, it is clear that, leasing, renting or hiring of motor vehicle having approved seating capacity of more than thirteen person is admissible for ITC. Hence Applicant would be entitled to avail ITC in the subject case. 2.9 As per para 2(t) of the exemption Notification No. 12/2017-C.T. (Rate) dated 28.06.2017, "contract carriage" has the same meaning as assigned to it in clause (7) of Section 2 of the Motor Vehicles Act, 1988 (59 of 1988) wherein "contract carriage" means a motor vehicle which carries a passenger or passengers for hire or reward and is engaged under a contract, whether express or implied, for the use of such vehicle as a whole for the carriage of passengers mentioned therein and entered into by a person with a holder of a permit in relation to such vehicle or any person authorized by him in this behalf on a fixed or an agreed rate or sum (a) On a time basis, whether or not with reference to any route or distance, or (b) from one point to another; And in either case, without stopping to pick up or set down passengers not included in the contract anywhere during the journey, And includes (i) a Maxicab; and (ii) a motor cab notwithstanding that separat....
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....een persons arc eligible for the ITC of the GST paid on the services of bus transportation received [as hirers of motor vehicles - highlighted in clause (b) (i) of Section 17 (5) of the CGST Act, 2017]. The earlier blanket restriction on availment of credits under Section 17 (5) has been relaxed in case of large capacity motor vehicles (more than 13 persons carrying capacity) used mainly for commercial non-public transportation like used by industrial/commercial concerns for their employees and the applicant's case is similar. 3.3 The following requirements should be met for availment of input tax credit. a) The vehicle has approved seating capacity of more than 13 persons (including driver). b) The service of leasing, renting or hiring is used for furtherance of business as per Section 16(1) of the CGST Act, 217. c) The service provider furnishes invoice as per Section 31 and Rule 46 of the CGST Act & the CGST Rules, respectively. d) All other conditions as prescribed under Section 16(2) are complied. 3.4 The jurisdictional officer has cited various judicial decisions along with the decision made by the Hon'ble Court in Commr. Or. Ex., Chandigarh-II v. Federal Mogul Goet....
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....ot admissible to Applicants on part of cost borne by the employees of the applicants and the ITC will be restricted to the extent of cost borne by the Applicant (employer). 04. HEARING 4.1 Preliminary hearing in the matter was held on 26.11.2019. Shri Rajesh Shukla, Head, Indirect Tax, appeared along with Shri Mukesh Dokania. Dy. General Manager (Indirect Taxation) and requested for admission of their application. Jurisdictional Officer was not present. 4.2 The application was admitted and called for final hearing on 17.12.2019. Shri Rajesh Shukla, Head, Indirect Tax, appeared along with Shri Mukesh Dokania, Dy. General Manager (Indirect Taxation). Authorized Representative, made oral and written submissions. Jurisdictional Officer was not present but made written submissions. We heard both the sides. 05. DISCUSSIONS AND FINDINGS: 5.1 We have gone through the facts of the case. documents on record and submissions made by both, the applicant as well as the jurisdictional office. 5.2 Applicant had submitted that they have engaged a service provider to provide bus transportation facility to its employees in non-air conditioned bus having seating capacity of more than 13 person. ....
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....or services or both-- (i) food and beverages, outdoor catering, beauty treatment, healty services, cosmetic and plastic surgery except where an inward supply of goods or services or both of a particular category is used by a registered person for making an outward taxable supply of the same category of goods or services or both or as element of a taxable composite or mixed supply; (ii) membership of a club. health and fitness centre; (iii) rent-a-cab, life insurance and health insurance except where (A) the Government notifies the services which are obligatory for an employer to provide to its employees under any law for the time being in force; or (B) such inward supply of goods or services or both of a particular category is used by a registered person for making an outward taxable supply of the same category of goods or services or both or as part of a taxable composite or mixed supply. 5.2.5 Vide the aforesaid amendment, Clauses (a) and (b) have been replaced with Clauses (a), (aa), (ab) and (b) and the amended Section 17 (5) (d) reads as under:- 17 (5) Notwithstanding anything contained in sub-section (1) of section 16 and subsection (1) of section 18, input tax c....
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....bligatory for an employer to provide the same to its employees under any law for the time being in force." 5.2.6 From the above, it is clear and apparent that Section 17 (5) had clearly debarred Input Tax Credit on motor vehicles or conveyances used in transport of passengers till the date of the amendment i.e. 01.12.2019. However with effect from 01.12.2019, Input Tax Credit has been allowed on leasing, renting or hiring of motor vehicles, for transportation of persons, having approved seating capacity of more than thirteen persons (including the driver), 5.2.7 Therefore in the subject case, since the applicant has specifically submitted and as agreed by the jurisdictional officer, that they are using motor vehicles having approved seating capacity of more than thirteen persons (including the driver), the applicant shall be eligible for Input Tax Credit in this case. However we would like to make it very clear that if the motor vehicle hired by them does not have an approved seating capacity of more than thirteen persons (including the driver), then in that case the applicant will not be eligible for Input Tax Credit. 5.3 The second question raised by the applicant is whether G....