TaxTMI 
TaxTMI 
2022 (12) TMI 807
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....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 original 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 ab-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. Subject: GST - Appeal filed by M/s. Sri Avantika Contracts (I) Limited, 610-B, Nilgiri Blocks, Aditya Enclav, Ameerpet, Hyderabad- 500 016 under Section 100 (1) of TGST Act, 2017 Against Advance Ruling TSAAR Order No. 05/2021, dated 05.08.2021 p....
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....er the TGST Act. 5. The Government of Republic of India & Government of Maldives entered into a memorandum of understanding for construction of a Police Academy. As per this MOU the Government of India has awarded the work relating to planning, designing and execution of the project to National Buildings Construction Corporation Ltd., New Delhi. Sri Avantika Contractors Ltd., are in turn awarded the sub-contract to construct the said building by National Buildings Construction Corporation Ltd., New Delhi. 6. Evidently Sri Avantika Contractor Ltd., have not entered into any contract with Government of Maldives for carrying out the said construction. Further they do not have any privity with respect to the MOU between the Government of Republic of India & Government of Maldives. Therefore the applicant does not have any mutual or successive relationship with the Government of Maldives. Hence Government of Maldives is not the recipient of any service from the applicant. 7. Further an agreement is reached by National Buildings Construction Corporation Ltd., (NBCCL) New Delhi & Sri Avantika Contractor Ltd to construct the building at Addu City in Maldives. Hence Sri Avantika Co....
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....all be the location of the recipient i.e., NBCCL 4. The present appeal challenges the ruling and is contested on the following grounds:- 1. The impugned order is passed without proper appreciation of the GST law holding that the supply made by the appellant is within the ambit of GST. The 1st respondent erred in giving a finding that place of supply is in India and hence the appellant is liable to GST without properly appreciating the facts and correct legal position that if the supply is neither intra state nor inter-state, no GST can be levied on the same. 2. Levy of GST depends on the place i.e., situs of tax event. In a consumption-based tax like GST, the tax goes to a place where the goods or services are consumed. CGST, SGST and IGST are accordingly levied basing on the place of supply, location of recipient of the supply and the location of the supplier. Hence, to substantiate the contention that supply of service by the appellant is neither inter-state nor intra-state and hence not taxable and is outside the purview of GST and laws of India, it is to be proved that:- (a) The location of the supplier or the location of the recipient are outside ....
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.... 4. In view of the above definition of the term 'fixed establishment', a place would be treated as a fixed Establishment when there is (i) sufficient degree of permanence, (ii) suitable structure in terms of human and technical resources. In terms of sub-section 15 (b) of Section 2 of IGST Act, 2017, when a supply is made from a place other than registered place of business, then location is that of the fixed establishment from where the supply is made and in terms of (c) of Section 2 of IGST Act, ibid, when a supply is made from more than one establishment, whether the place of business or fixed establishment, the location of establishment most directly concerned with the provision of the supply is to be treated as location of supplier. 5. The appellant has an established office in Maldives which is re-registered under the laws of Maldives and is considered a branch or project office of the appellant. There is no dispute that the supply made by the appellant is a construction service which requires manpower and supply and execution of goods in the premises where immovable property is located and such supply cannot be undertaken from a distance from the he....
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.... supplier is Maldives i.e., outside India. 5. The location of the recipient is outside India: 1. The term 'recipient' is defined under Section2(93) of the CGST Act, 2017 as below: "recipient" of supply of goods or services or both, means- (a) where a consideration is payable for the supply of goods or services or both, the person who is liable to pay that consideration; (b) where no consideration is payable for the supply of goods, the person to whom the goods are delivered or made available, or to whom possession or use of the goods is given or made available, and (c) where no consideration is payable for the supply of service, the person to whom the service is rendered, and any reference to a person to whom a supply is made shall be construed as a reference to the recipient of the supply and shall include an agent acting as such on behalf of the recipient in relation to the goods or services or both supplied. 2. NBCCL is the executive agent of the Government of India and is liable to pay the consideration to the appellant on behalf of the Government of India. The location of NBCCL should be considered as the locatio....
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.... 4. Merely because the consideration is paid in Indian currency by the recipient from its registered place of business in India to the supplier at its registered place of business in India, the location of either of the parties cannot be said to be constituted in India and the place where service is received is the only determining factor for determining the location under GST Act, 2017 and not where the consideration is paid from. Hence, the location of the recipient is also outside India. 6. Supply is in relation to immovable property: 1. There is no dispute with regards to the fact that the appellant is executing a works contract of construction of a building for government of Maldives on behalf of Ministry of External Affairs, Government of India. The building being an immovable property, all services in relation to such construction are treated as relating to immovable property. 7. The place of supply is outside India in terms of Section 13 of IGST Act, 2017: 1. The next important factor for determining whether the supply made by appellant is taxable under the purview of GST Act, 2017 is, the 'place of supply' which is defined under Section 2(....
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.... of the recipient of services is outside India. ............................. (4) The place of supply of services supplied directly in relation to an immovable property, including services supplied in this regard by experts and estate agents, supply of accommodation by a hotel, inn, guest house, club or campsite, by whatever name called, grant of rights to use immovable property, services for carrying out or co-ordination of construction work, including that of architects or interior decorators, shall be place where the immovable property is located or intended to be located. ......................." 4. The above provisions very clearly stipulate that when location of either supplier or the recipient is outside India and not necessarily both, Section 12 is not applicable and Section 13 is applicable and in terms of Section 13(4), the immovable property is intended to be located in Maldives and all services in relation to construction of immovable property are supplied outside India. 5. In view of the above legal position, the place of supply of service provided by the fixed establishment of the appellant is Maldives i.e., outside India. ....
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....he non-taxable territory or not, and the service being received outside the taxable territory is without jurisdiction. Whether the appeal is filed in time: 5. In terms of Section 100 (2) of the Act, an appeal against Advance Ruling passed by the Advance Ruling Authority, has to be filed within thirty (30) days from the date of communication thereof to the applicant. The impugned Order dated 05.08.2021 was received by the appellant on 19.08.2021 as mentioned in their Appeal Form GST ARA-02. They filed the appeal on 13.09.2022, which is within the prescribed time-limit. Personal Hearing: 6. In terms of Section 101(1) of the Act, the appellant was given personal hearing, on 29.04.2022. Shri M/s.YSR & Associates, Advocates and Tax consultants (C. Srinivas Tax Consultant and Y. Siri Reddy Advocate) and Authorised Representative appeared for the Appellants. The appellants reiterated their written submissions made along with the application and no additional submissions were made at the time of personal hearing. They requested to set aside the advance ruling in respect of said issue that are being contested and consider their appeal favourably. Discussions and Findings : ....
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....ral height complex, Road No 1, Banjara hills, Hyderabad 500034 has been duly awarded the contract by the National buildings construction corporation limited on behalf of the Ministry of external affairs, Govt of India, New Delhi for implementation of the said project. • The said project has been planned envisaging that most of the construction material & labour (Skilled, Semi Skilled & un skilled) for the project as would be required, shall be exported from India to Male , Republic of Maldives. 6. Further, it was stated that, Sri Avantika Contractors (I) Limited is registered under the laws and regulations of Republic of Maldives with registered office at F.Reef View,Hirudhu Maa Magu, S.Hithadhoo, Republic of Maldives. 7. The applicant contends that the registered office at Maldives is the fixed establishment for Sri Avantika Contractors (I) Limited, Hyderabad , hence the location of the supplier is in Maldives as per section 2(15) of the IGST Act, hence place of supply is to be considered as per section 13(4) of the IGST Act, 2017. 8. Before examining the Place of Supply or taxability of the transactions, it is necessary to examine the natur....
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....7 (Sub-section 71 of Section 2) as under :- (a) where a supply is made from a place of business for which the registration has been obtained, the location of such place of business; (b) where a supply is made from a place other than the place of business for which registration has been obtained (a fixed establishment elsewhere), the location of such fixed establishment; (c) where a supply is made from more than one establishment, whether the place of business or fixed establishment, the location of the establishment most directly concerned with the provisions of the supply; and (d) in absence of such places, the location of the usual place of residence of the supplier; 14. In this case, the supply, the agreement to perform is being made from the Place of business for which registration has been obtained (i.e. M/s Avantika Contractor (I) Limited, 401/A wing D.No:6-3-352/2&3, Astral height complex, Road No 1, Banjara hills, Hyderabad 500034). Hence, this location, i.e., M/s Avantika Contract (I) Limited with GSTIN: 36AAJCS55046C1ZG at Hyderabad will be the location of the Supplier of services. 15. Also, on careful perusal of the d....
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....of services" means,- (a) where a supply is received at a place of business for which the registration has been obtained, the location of such place of business; (b) where a supply is received at a place other than the place of business for which registration has been obtained (a fixed establishment elsewhere), the location of such fixed establishment; (c) where a supply is received at more than one establishment, whether the place of business or fixed establishment, the location of the establishment most directly concerned with the receipt of the supply; and (d) in absence of such places, the location of the usual place of residence of the recipient; 21. The discussion from where the "individual" goods and services involved in the Works contract are received, is immaterial in determining the Location of the Recipient. Instead, the place where the total service (works contract service), of agreeing to perform has been received will be the location of recipient of service. 22. In this case, the supply, the agreement to perform is received at the Place of business for which registration has been obtained (i.e. NBCC (India) Limited,....