TaxTMI 
TaxTMI 
TaxTMI 
2022 (11) TMI 81
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....lso mean a reference to the same provisions under UPSGST Act, 2017 and the vice versa. A. BRIEF FACTS OF THE CASE The instant appeal has been preferred against Advance Ruling No. UP ADRG-90/2021 dated 17.12.2021 passed in the case of applicant i.e. M/s KRBL Infrastructure Private Limited. The Brief facts of the case are as under: A.1 The applicant is engaged in carrying out the activities such as renovation, alteration, repair & maintenance, fabrication, re-fabrication furnishing, re-furnishing interiors or civil works of existing building and other related activities for the purpose of letting out the building to different tenants on rental basis. A.2 The Appellant is also planning to undertake the activity of construction of a Commercial Complex at Plot 18, Block-C, Sector-153, Noida, Gautam Buddha Nagar for the purpose of renting out to prospective tenants and for this purpose, the appellant intends to procure various goods & services. A.3 The applicant has undertaken various services in the nature of 'Civil and Interior Works' at different floors of the building as per requirement of the customers and such cost incurred upon interior decoration is recoverable from ....
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....ounts to supply of service under the CGST Act, 2017 and Appellant is liable to pay GST on the said rental income. B.3 The Appellant has paid GST Rs. 25.89 lacs in respect of goods and services received for carrying out the 'Civil & Interior Works' in different floors of building since all the inward supplies received by the Appellant are taxable under GST. B.4 Pursuant to Section 16 (1) of CGST Act, 2017, every registered person is entitled to take credit of input tax charged on any supply of goods and services or both to him which are used for intended to be used by him in the course of furtherance of business. B.5 The Appellant has submitted that there is not bar on availment of input tax credit under Section 16 (2) of CGST Act, 2017 if following conditions are satisfied. Section 16 of the CGST Act, 2017 provides for eligibility and conditions for taking the input tax credit. The Section is extracted hereunder for reference- "Eligibility and condition for taking input tax credit 16.(1)..................................... "(2) Notwithstanding anything contained in this section, no registered person shall be entitled to the credit of any input tax credit in respe....
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....ax credit shall be available in respect of- (i) Works contract services received for construction of an immovable property; and (ii) Goods and/or services received for construction of an immovable property B.7 Appellant submits that on a plain reading of provisions of Section 17 (5) (d) of CGST Act, 2017 it is clear that what it contemplates and provides for is a situation where inputs are consumed in the construction of an immovable property which is meant and intended to be sold. The sale of immovable property post issuance of completion certificate dos not attract levy of GST. Consequently, in such situation tax chain breaks and denial of ITC is fully justified. However, the position in the instant case is entirely different and supply chain continues by way of letting out the property to tenants in the course of furtherance of business and the activity undertaken by the Appellant of letting out the floors of the building to prospective tenants amounts to supply as defined in CGST Act, 2017 and Appellant squarely gets covered under the definition of 'Supplier' in terms of Section 2(105) of CGST Act, 2017. B.8 The Appellant also submits that the Civil and Interior W....
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.... C.6. amount to treating the transaction as identical to a building meant and intended to be sold. Treatment of these two different type of transactions as one for the purpose of GST, is contrary to the basis principles regarding classification of subject matter of tax levy and therefore violative of Article 14 of the Constitution. C.7. The Appellant submits that Section 17 (5) of the CGST Act, 2017 and the respective state GST Acts have led to a paradoxical situations by denying credits, as the objective of the GST is free flow of credits when the output is in the course or furtherance of business. C.8 The Appellant submits that input credit in relation to goods and services purchased/received for 'Civil & Interior Work' done in various floors of building and also in respect of 'Commercial Complex' intended to be let out on rent, shall be admissible to them as all these goods arid services purchased/received for carrying out the 'Works' are taxable under the CGST Act and the And the Appellant has paid huge amount of GST on such purchase which will further be used for outward supply taxable under GST Act. D. Reason behind manual filing of Appeal before th....
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....curred. for 'Civil and Interior Works' as mentioned above in building located. at C-32, Sector-62, Noida, Gautam Buddha Nagar, Uttar Pradesh at different floors, since the property is further used for letting out to different tenants on rental basis viz, for furtherance business?" (2) "Whether ITC on construction of commercial complex will be available to Appellant in case the said building will be used for the purpose of renting out ?" E.2 The Authority for Advance Ruling vide Advance Ruling Order No. UP ADRG-90/2021 dated 17.12.2021 have pronounced the ruling that they are not eligible to claim Input Tax Credit on the stated matters. The Appellant being aggrieved from the aforesaid ruling has preferred this appeal before us on 07.07.2022. Before we go into the merits of the case, admissibility of the appeal filed by the Appellant has to be examined in the light of provisions laid down under Section 100 of CGST Act, 2017. E.3 We find that the Appellant was given advance ruling by the Authority on 17.12.2021 and according to the Appellant the said order was communicated to them on 12.01.2022 as per their Form ARA- 02 (and as per annexure 2 para 6.1 of their grounds of a....
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....or issuance of the said notice, order or certificate in such Forms as appended to these rules." E.6 We find that as per Appellant's own version the Advance Ruling Order No, UP ADRG-90/2021 dated 17.12.2021 was served to them on 12.02.2022 and thus the last date of appeal against the said order was 11.03.2022 Further, in terms of proviso to sub-section (2) of Section 100 of CGST Act, even if it is assumed that the Appellant was prevented by a sufficient cause for filing an appeal and a further period of 30 days were allowed for filing of appeal, if the last date of filing appeal would have been 13.04.2022. E.7 It is also evident on record that the Appellant paid fee of Rs. 1000/- vide Challan No. HDFC22060900268860 dated 21.06.2022 and the remaining statutory fee amounting to Rs. 19,000/- was paid on 07.07.2022 and thus the statutory fee [Rs. 10000/- CGST - Rs. 10000/ - SGST] as mandated under sub-section (3) of Section 100 CGST Act, was finally paid on 07.07.2022. Accordingly, the actual date of filing appeal shall be 07.07.2022 i.e. the date when the Appellant has paid the statutory fee as mandated under law. E.8 The Appellant has himself submitted that they were served the....