TaxTMI 
TaxTMI 
TaxTMI 
2024 (7) TMI 354
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.... facts, shall render such ruling to be void ab initio in accordance with Section 104 of the Act. 5. The provisions of both the Central Goods and Services Tax Act and the Tamil Nadu Goods and Services Tax Act (herein referred to as an Act) are the same except for certain provisions. Therefore, unless a mention is specifically made to such dissimilar provisions, a reference to the Central Goods and Services Tax Act would also mean a reference to the same provisions under the Tamil Nadu Goods and Services Tax Act. 1. At the outset, we would like to make it clear that the provisions of both the Central Goods and Services Tax Act and the Tamil Nadu Goods and Services Tax Act are in pari materia and have the same provisions in like matter and differ from each other only on few specific provisions. Therefore, unless a mention is specifically made to such dissimilar provisions, a reference to the Central Goods and Service Tax Act, 2017 would also mean a reference to the same provisions under the Tamil Nadu Goods and Services Tax Act, 2017. 2. The applicant submitted a copy of challan dated 22.04.2023 evidencing payment of application fees of Rs. 5,000/- each under sub-rule (1) of Rule 1....
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....ommendations of the Council, and on being satisfied that it is necessary in the public interest so to do, hereby notifies that the Central Tax, on the intra-State supply of services of description as specified in column (3) of the Table below, falling under Chapter, Section or Heading of scheme of classification of services as specified in column (2), shall be levied at the rate as specified in the corresponding entry in column (4), subject to the conditions as specified in the corresponding entry in column (5) of the said Table:- Description of service Rate Condition (3) (4) (5) (ie) Construction of an apartment in an ongoing project under any of the schemes specified in sub-item (b), sub-item (c), sub-item (d), sub-item (da) and sub-item (db) of item (iv); sub-item (b), sub-item (c), sub-item (d) and sub-item (da) of item (v); and sub-item (c) of item (vi), against serial number 3 of the Table, in respect of which the promoter has exercised option to pay central tax on construction of apartments at the rates as specified for this item 6 Provided that in case of ongoing project, the registered person shall exercise one time option in the Form at Annexure IV to pay centra....
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....uld be construction service falling under any of the schemes as stated in the Notification. b) The project must be an ongoing project. c) Option to pay tax at such rate shall be exercised in the form at Annexure IV on or before 10.05.2019 3.7 With regard to the condition that the services should be "construction service" falling under any of the schemes as stated in the Notification, the applicant submitted that as stated in para 'ie' of the Notification no. 11/2017-Central tax (Rate) dated 28.06.2017 as amended by Notification 03/2019-Central tax (rate) dated 29.03.2019, the construction of apartments should fall under any of the following schemes Sub item and item as specified in Entry 'ie' Description of Service Applicability in present case. Sub-item (b) of item (iv) a civil structure or any other original works pertaining to a scheme under Jawaharlal Nehru National Urban Renewal Mission or Rajiv Awaas Yojana; Not applicable Sub-item (c) of item (iv) (c) a civil structure or any other original works pertaining to the "In-situ redevelopment of existing slums using land as a resource, under the Housing for All (Urban) Mission/ Pradhan Mantri Awas Yoj....
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....d Services Tax Act, 2017. Not applicable 3.8. The applicant submitted that as per Notification of Government of India, in Ministry of Finance, Department of Economic Affairs vide F.No. 13/6/2009-INF, dated the 30th of March 2017, the term Affordable Housing is added under 'Social and Commercial Infrastructure'. The term Affordable Housing has been defined to mean - "Affordable Housing" is defined as a housing project using at least 50% of the Floor Area Ratio (FAR)/Floor Space Index (FSI) for dwelling units with carpet area of not more than 60 square meters." 3.9. The applicant submitted that their case falls under scheme specified at sub-item (da) of item (v) of the above Notification and they are attaching the project plans along with the Unit configuration of 'Block A 7' as Annexure "A-3" to demonstrate that all the units are below 60 square meters. They submitted that thus, the 1st condition of the construction of apartments falling in the schemes specified has been fulfilled. 3.10. With regard to the condition that the project must be an ongoing project the applicant submitted that the term ongoing project is also defined in the Notification no. 11/2017-....
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....the completion certificate is also not received. The applicant submitted that the construction of the project is still ongoing and thus, the second requirement of non-issuance of completion certificate on or before 31.03.2020 has been fulfilled. 3.13. The applicant submitted that the last condition to be fulfilled for a project to be an ongoing project is apartments being constructed under the project should have been, partly or wholly, booked on or before the 31st of March, 2019 and in their case, apartments have been booked much earlier than 31st March, 2019. They submitted that the said facts can be verified from the ledger accounts of the flat owners wherein the payments received, and the date of receipt can be verified. The same have been attached and marked as Annexure ''A-6". The applicant submitted that all the conditions of the project being an ongoing project are fulfilled in their project under consideration. 3.14 With regard to option to pay tax at such rate shall be exercised in the form at Annexure IV on or before 10.05.2019 the applicant submitted that in order to pay central tax on the construction of apartments at the rate specified in the entry which is ....
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....ruction of residential apartments in a project which commences on or after 01-04-2019 as well as in on-going projects. However, in case of on-going project, the promoter has .an option to pay GST at tire old rates, i.e. at the effective rate of 8% on affordable residential apartments and effective rate of 12% on other than affordable residential apartments and, consequently, to avail permissible credit of inputs taxes; in such cases the promoter is also expected to pass the benefit of the credit availed by him to the buyers. 2 Does a promoter or a builder has option to pay tax at old rates of 8% & 12% with ITC? Yes, but such an option is available in the case of an ongoing project. In case of such a project, the promoter or builder has option to pay GST at old effective rate of 8% and 12% with ITC. To continue with the old rates, the promoter/ builder has to exercise one time option in the prescribed form and submit the same manually to the jurisdictional Commissioner by the 10th of May, 2019. However, in case where a promoter or builder does not exercise option in the prescribed form, it shall be deemed that he has opted for new rates in respect of ongoing projects and accor....
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....ion and the additional submissions made during the personal hearing. 6.2 In terms of Section 97 (2) of the CGST/TNGST Act, 2017 questions on which advance ruling is sought under the Act, falls within the scope of Section 97 (2) (b) and (e) of the CGST/TNGST Act, 2017, and therefore the application is admissible. 6.3 The Applicant is before us seeking Advance ruling on the question whether the applicant can levy and discharge Output tax on services provided by it at the effective rate 8% (12% less 1/3rd value deducted on account of land) under entry number 3 (ie) of Notification no. 11/2017-Central Tax (rate) dated 28.06.2017 as amended by Notification 03/2019-central tax (rate) dated 29.03.2019. 6.4 The Applicant submits that they are engaged in the business of providing construction services in respect of Commercial or Residential buildings and Civil structures and they had started the construction of Tower 'Block A7' in the year February 2019. They further submit that the said project included residential units, measuring approximately 42 Sq. meter per unit, as well as commercial units. They also submit that the area of Commercial unit is less than 15% of the total are....
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....lue of land or undivided share of land, as the case may be, in such supply shall be deemed to be one third of the total amount charged for such supply. Explanation.-For the purposes of paragraph 2, "total amount" means the sum total of-(a) consideration charged for aforesaid service; and(b) amount charged for transfer of land or undivided share of land, as the case may be. 6.6 We find that the applicant states that the item 'ie' of sl.no. 3 of the Notification no. 11/2017-Central Tax (rate) dated 28.06.2017 as amended by Notification 03/2019-Central tax (Rate) dated 29.03.2019 is applicable to them. The relevant portion of the Notification is reproduced at para 3.5 above and the same is not repeated here for the sake of brevity. We find that the Notification 11/2017-Central Tax (rate) dated 28.06.2017 was further amended vide Notification No 06/2023 Central Tax (Rate) dated 26-07-2023 by insertion of an explanation against serial number 3, in column (3), in item (ie), the same is reproduced below; "Explanation. -This item refers to sub-items of the item (iv), (v) and (vi), against serial number 3 of the Table as they existed in the notification prior to their omission vi....
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....) completion certificate has not been issued or first occupation of the project has not taken place on or before the 31st March, 2019; (d) apartments being constructed under the project have been, partly or wholly, booked on or before the 31st March, 2019. Explanation. For the purpose of sub-clauses (a) and (b) above, construction of a project shall be considered to have started on or before the 31st March, 2019, if the earthwork for site preparation for the project has been completed and excavation for foundation has started on or before the 31st March, 2019." 6.9 With regard to the above we find that the applicant has submitted that the project in question meets all the stipulated conditions to qualify as an ongoing project. We find that the applicant has submitted copies of plan approval certificate dated 19.06.2018 issued by the Assistant Director, Urban Planing, Thiruvallur Zone and Chartered Engineers certificate dated 15.04.2019 in support of the claim and in lieu of proof that the first condition is satisfied. We find that in respect of second condition that completion certificate has not been issued or first occupation of the project has not taken place on or before t....
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....ated by the Notification then option to pay tax at the rates as applicable to item (i) or (ia) or (ib) or (ic) or (id) shall be deemed to be applicable. We find that the applicant submits that the option was exercised by way of submission of Form in Annexure IV to the Assistant Commissioner, Kilpauk Assessment Circle on 09.05.2019. We find that the applicant has submitted an extract of letter delivery book showing that "Annexure IV along with supporting documents" was submitted to the Assistant Commissioner, Kilpauk Assessment and hence also satisfied the condition as mentioned in item 'ie' of SI No 3 of Notification No. 11/2017-Central Tax (Rate) dated 28.06.2017. 6.11 Further, with regard to the schemes mentioned in item 'ie' of SI No 3 of Notification No. 11/2017-Central Tax (Rate) dated 28.06.2017 we find that the applicant has submitted that the scheme specified in sub-item (da) of item, (v) is applicable to them. In this regard we find that the scheme "(da) of item (v) - low-cost houses up to a carpet area of 60 square metres per house in an affordable housing project which has been given infrastructure status vide notification of Government of India, in Mini....
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....ice of the house). Whether the housing project qualifies as affordable housing project or not, shall be determined by the builder/ developer as per the definition of affordable housing given in the above mentioned Notification (i.e., affordable housing has been defined as a housing project using at least 50% of FAR/FSI for dwelling units with carpet area of not more than 60 SQM). No certificate from any authority is required." 6.13 We find that in the instant case the applicant has stated that all the units are below 60 square metres and has submitted the project plans and Unit configuration of 'Block 7' in support of the same. We also find that the applicant has stated that the area of Commercial unit is less than 15% of the total area of the project. 6.14 From a reading of the Notification No. 11/2017-Central Tax (Rate) dated 28.06.2017 as amended, the clarification issued by Government of India Ministry of Finance Department of Revenue (TRU) mentioned above, the submissions of the taxpayer and the facts on record we find that the item i.e. of SL no 3 of the Notification No. 11/2017-Central Tax (Rate) dated 28.06.2017 as amended, is applicable to the applicant as the ap....