TaxTMI 
TaxTMI 
2021 (11) TMI 884
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....nd TGST Act. 3. It is observed that the queries raised by the applicant fall within the ambit of Section 97 of the GST ACT. The Applicant enclosed copies of challans as proof of payment of Rs. 5,000/- for SGST and Rs. 5,000/- for CGST towards the fee for Advance Ruling. The concerned jurisdictional officer also raised no objection to the admission of the application. The application is therefore, admitted 4. Brief facts of the case: The applicant is in the business of leasing out immovable properties. In the furtherance of his business he has purchased a flat in 11th floor Sohini Tech Park. The applicant submitted that they have also paid GST @12% on the sale consideration. That such tax remitted by the applicant to his vendor was reflected in his GSTR-2A for the month of July, 2019. Now the applicant would like to use this amount in GSTR-2A as input tax credit (ITC) to set off his liability arising from his supply of leasing of immovable property. Hence this application. 5. Questions raised: It is respectfully submitted that from the Statement of facts and the Applicant's interpretation of law, rules and/or facts, the following substantial questions arises for the c....
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.... of s.17(5)(d) of CGST Act, given that the business of the Applicant is lease of immovable property and not construction of immovable property? 9. Regardless of its applicability to the case of the Applicant herein, given the numerous clarifications and notifications by the Dept of Revenue that clearly states that input credit is available for the sale of under construction commercial complexes sold before the issuance of the completion certificate, is not the Authority now precluded from taking a different stand?, since: (a) it is against the principle of contemporanea expositio and (b) they are bound by such executive constructions as well as rules of executive estoppel. 10. Is not purchase of "under construction commercial immovable property" under an indivisible contract without explicit purchase of goods and/or services therein, a valid and legitimate input required for the business of the Applicant i.e. lease of immovable property? 11. Given that the Applicant's Vendor (Sohini Developers LLP) has taken the input tax credit of the GST paid by the Applicant, what specific law/rule prevents the flow of that tax and excludes the Applic....
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....f Schedule II of SGST Act, 2017. 2. That being a deemed service under the above entry in Schedule II of CGST Act, 2017 such inward supply does not fall under the exclusion provided in Sec 17 of the CGST Act, 2017 from availing input tax credit (ITC). 3. That Sec 17(5)(c) though excluding inward supply of works contract services from availing input tax credit (ITC), such works contract service should be interpreted only as the services provided under Entry 6 to Schedule II and the definition given in clause 119 of Sec 2 should not be applied to Entry 5 of Schedule II. 4. Therefore in sum and substance the tax paid by them on purchase of immovable property i.e., a constructed building/flat should be available for them as ITC to be used to offset their liability arising out of leasing of the same building. By the constitution 101st Amendment Act, 2016 Clause 26A was introduced in the Article 366 to define Services. This clause defines Services as anything other than goods. Concomitantly following this definition of the constitution the CGST Act, 2017 defines services as anything other than goods. Therefore, supply of all immovable property including suppl....
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.... entries in Schedule II and as the construction and sale of buildings are enumerated at Paragraph 5 as a separate entry it should not be treated as works contract enumerated at Paragraph 5 of the same Schedule. Therefore the condition in Sec 17(5)(c) cannot be applied to restrict claim of input tax credit (ITC) when such building is used for further supply in lease of such property. In this context it is observed that though the definition of works contract in Sec 2(119) of the CGST Act, 2017 covers all the construction activities including construction of buildings, however for the purpose of charging Sec 7 of the CGST Act, 2017 a specific entry in Paragraph 5 of Schedule II is included as a taxation entry for buildings and complexes for sale. This construction of statute cannot be extended to any other provision or section in the act. The Hon'ble Supreme Court of India in the case of Joint CIT Vs Saheli Leasing & Industries (2010) 6 SCC 384 (SC 3 Member bench) has held that a particular word occurring in one section of the Act, having a particular object, cannot carry the same meaning when used in different section of the same Act which is enacted for a different object. In ot....
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....clause 5(b) of Schedule II of CGST Act, can the same be treated to be referring to either the supplies or transactions described in 17(5)(c) or 17(5)(d) of CGST? Clause 5(b) of Schedule II and Sec 17(5)(c) are two different and distinct provisions of CGST Act, 2017. 2. Given that the supply of lease of immovable property is specifically defined as a separate and distinct service under clause 2(b) of Schedule II of CGST Act, can the same be treated to be referring to either the supplies or transactions described in 17(5)(c) or 17(5)(d) of CGST? Clause 2(b) of Schedule II and Sec 17(5)(c) are two different and distinct provisions of CGST Act, 2017. 3. Given that the Applicant is in the business of lease of immovable property, does the term "works contract services when supplied for" in s.17(5)(c) of CGST Act refer to output supply of lease of immovable property or to the input receipt (purchase of under construction commercial immovable property) of the Applicant? Sec 17(5)(c) is enacted with reference to restriction of ITC to works contract services. Works contract is defined under Sec 2(119). 4. Is supply of "under construction commercial immovable property" under....