TaxTMI 
TaxTMI 
2021 (4) TMI 933
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....pronounced by the Appellate Authority under Chapter XVII of the Act shall be binding only (a). On the applicant who had sought it in respect of any matter referred to in sub-section (2) of Section 97 for advance ruling; (b). On the concerned officer or the jurisdictional officer in respect of the applicant. 3. Under Section 103 (2) of the Act, this advance ruling shall be binding unless the law, facts or circumstances supporting the said advance ruling have changed. 4. Under Section 104 (1) of the Act, where the Appellate Authority finds that advance ruling pronounced by it under sub-section (1) of Section 101 has been obtained by the appellant by fraud or suppression of material facts or misrepresentation of facts, it may, by order, declare such ruling to be void sb-initio and thereupon all the provisions of this Act or the rules made thereunder shall apply to the appellant as if such advance ruling has never been made. At the outset, we would like to make it clear that the provisions of both the Central Goods and Service Tax Act and the Tamil Nadu Goods and Service Tax Act are the same except for certain provisions. Therefore, unless a mention is specifically made to such ....
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....d purchase of land is not subject to the levy of GST. It was also felt that the grant of access to pathway to the residential dwelling was exempt from GST under SI no 12 of Notification 12/2017 since any leasing in connection with residential property was exempted therein. 2.2 The Appellant made an application to ORIGINAL AUTHORITY on the following question: Whether leasing of pathway to a person to her/his dwelling unit by CMRL is taxable under GST? 3. The Original Authority has ruled as follows: The leasing of pathway by the appellant to Dr. Prema (lessee) by way of shared access of the Non-residential property held by the appellant is taxable under GST. 4.1 Aggrieved by the above decision, the Appellant has filed the present appeal. In the grounds of appeal, they have inter-alia, stated that: * The Authority for Advance Ruling (AAR, for short) has failed to consider and recognize that the grant of access to pathway to connect with the outside world was a covenant running with the land and inseparable from the sale and purchase of the land which was not a supply to be taxed under GST. * The AAR have admitted vide para no 7.1 of the Ruling that the consideration for the....
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.... of Notification 12/2017 ibid. PERSONAL HEARING: 5.1 Due to the prevailing PANDEMIC situation, the appellant was addressed through the Email Address mentioned in the application to seek their willingness to participate in a virtual Personal Hearing in Digital mode vide e-mail dated 23rd December 2020. The appellant provided their consent to be heard through virtual mode. They were extended the opportunity to be heard virtually on 22nd January 2021 and the appellant sought adjournment as their advocate was not available on the said date. They were extended an opportunity to be heard on 5Th February and the hearing was held virtually on 5th February 2021. The Authorized representative appeared for the hearing virtually. They furnished written submission (vide email) which was taken on record. They stated that: 1. Easement is not contemplated in Schedule II of the CGST/TNGST Act 2017. 2. The purchase and acquisition is a composite supply with 'Supply of Land' being 'Principal Supply' and grant of pathway access 'Ancillary Supply'. They stated that they will furnish the minutes of the Lok Adalat settling the land acquisition proceedings. 5.2 The applican....
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....ccess to road. Hence it amounted to a composite supply in which the principal supply was that of land which was not liable to GST. The subsidiary supply of easement was integrally bundled in the sale of land and would be synonymous with the principal supply of land for GST purposes and so tax free. * Without prejudice to any of the grounds pleaded in the appeal, it is submitted that even if easement were to be considered a taxable service in a narrow sense, not every type of easement is covered in serial no 2 (a) of schedule II of the GST Act. The statutory entry puts "easement" in the company of lease, tenancy and license to 'occupy land. Lease., tenancy and license to occupy denote possession and occupation by the lessee, tenant and licensee respectively. Hence only easements where there is a possession and occupation of the space by the owner of the dominant heritage would be liable to tax if at all. In the case of the appellant, the easement at issue is only a grant of access to reach the road and there is admittedly no grant of right of occupation and possession unlike lease, tenancy or license to occupy. In other words, the appellant didn't grant any easement in the....
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.... the said Land(hereinafter referred to as the 'Land Owner'). The Land Owner had filed LAOP No. 28/12 and 67/13 claiming enhanced compensation before the Civil Court and had also desired to take the land measuring 452 Sq. ft. on lease, for access to main road. As per the Minutes of the Directors Level Committee meeting held on 5" Day of August 2019 to recommend maximum additional compensation that can be paid to claimant to settle the LAOPs, it had been recommended that a lumpsum additional compensation of Rs. 4,00,00,000(Rupees Four Crores Only) inclusive of all, can be paid to settle the above 2 LAOP cases with grant of shared access to the pathway on payment of lease rent for 35 years extendable on payment of lease rent at 1% of GLV prevailing at that time, against the claim of an additional compensation of Rs. 4.34 Crores along with the lease of land for access to road. A Memorandum of Understanding dated 21st August 2019 has been signed by the appellant with the land owner wherein it has been agreed * by the appellant to pay Rs. 4,00,00,000/-(Rupees Four Crores Only) as an additional consideration over and above the amount already paid under Awards, inclusive of all t....
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....t taxable under GST. 7.4 Section 4 of Indian Easement Act, 1882 defines "Easement" as follows: An easement is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of certain other land not his own. From the above definition, easement is a right one possesses over certain other land for the beneficial enjoyment of his land, to do and continue to do something or to prevent and continue to prevent something being done on such land, on parting of the said other land. Thus 'easement' is a right a person holds on the land which is not his but a necessity for enjoyment of his property and is not granted but acquired. In the case at hand the appellant had acquired the land of the landowner and compensated monetarily along with agreeing to grant the shared access to the pathway for a specific period on payment of lease rentals. In respect of right-to-way as easement, it is the right of the landowner, held with him on account of sale of the land appurtenant to the pathway and such right flows automatica....
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....er is not legal and therefore, the activity is a 'License' as defined under Section 52 of the Indian Easement Act 1882 above, granted by the appellant to the land owner. The appellant is the owner of the pathway and holds the right to use the pathway for its purposes, while the land owner is also allowed to use the pathway. The appellant is a company and had acquired the land for its business purpose; The land once acquired for business purposes becomes a non-residential property. The Landowner has been granted the right of shared access enabling the land owner access to the road. This right to use the pathway being common to both the appellant and the landowner, the pathway cannot be termed as land appurtenant to the residential dwelling as claimed by the appellant. 7.7 The appellant has contended that the easement at hand is not one where there is transfer of space, occupied by the easement taker and not in the nature of lease, tenancy, licence to occupy which are declared as services under Schedule-II of the Act and therefore, this particular type of easement is not covered under Schedule-II. It has been brought out clearly that the shared access against rentals is not ....