TaxTMI 
TaxTMI 
2021 (4) TMI 933
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....3 (1) of the Act, this Advance ruling 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.....
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....f the price for the sale and purchase of the land. The sale and 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....
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....Pathway with its access to the Landlady is to be considered as part of the residential dwelling of the Landlady. Any renting or leasing of residential property is exempted from tax under serial no 12 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'....
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....nt of access to road over the land makes the easement part and parcel of the residential dwelling of the landlady which makes it free from tax-liability. • Without prejudice, it is submitted that the land would not have been supplied to the Appellant without the easement of access 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 li....
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....ore, we proceed to take up the case for decision. 7.1 From the submissions, we find that the appellant had acquired land and building to an extant of 2077.452 Sq.ft in Survey No. T.S.5/2 under Award No.17 dated 27.02.2012 and 425.178 Sq.ft. in Survey No. T.S. 5/3 under an Award No. 21 dated 07.09.2012 on payment of compensation to the Owner of 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 w....
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....ared access for a consideration by the appellant. It is the contention of the appellant that the right to pathway is an easement of the land owner, an appurtenant to the residential dwelling; not in the genre of lease, tenancy, etc which are declared as 'services' in Schedule-II to the Act; easement is ancillary to sale of land in the composite supply of land and therefore the easement in the case at hand is not 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 pro....
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....wful, and such right does not amount to an easement or an interest in the property, the right is called a license In the case at hand, as brought out in para supra, the shared access granted againt lease rentals for a specific period of time, is not an easement acquired on sale of land by the land owner but a right granted by the appellant by way of MOU on payment of rentals. In the absence of such right, the usage of the pathway by the landowner 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 d....