TaxTMI 
TaxTMI 
2024 (7) TMI 354
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....r suppression of material facts or misrepresentation of 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 appl....
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....rtion of Notification as follows; "The Central Government, on the recommendations 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....
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.... 3.6 That the conditions for applicability of CGST rate of 6% and corresponding SGST rate of 6% the following parameters are essential for determination: a) Services should 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 ....
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....ated the 30th March, 2017 Applicable in Present Case Sub-item (c) of item (vi) (c) a residential complex predominantly meant for self-use or the use of their employees or other persons specified in paragraph 3 of the Schedule III of the Central Goods and 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 condi....
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....enced as on 31.03.2019. Thus, the first requirement has been fulfilled as the project commenced before 31.03.2019. 3.12. The applicant further submitted that the Chartered engineer's certificate dated 15.04.2019 certified the percentage of work completed as on 31.03.2019 showing that the project was not completed as on 31.03.2019 and 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 t....
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....promoters in a real estate project are as under: Description Effective rate Construction of affordable residential apartments 1% without ITC on total consideration Construction of residential apartments other than affordable residential apartments 5% without ITC on total consideration The above rates are effective from 01-04-2019 and are applicable to construction 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. T....
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....quired as to whether they have complied with tire conditions in the Notification, for which they stated that the conditions have been fulfilled and the relevant documents have been attached. The representatives agreed that they would submit any further details, if required. DISCUSSION AND FINDINGS 6.1 We have carefully considered the submissions made by the applicant in the advance ruling application 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 con....
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....i) above. 9 - 2. In case of supply of service specified in column (3) of the entry at item (i) against serial no. 3 of the Table above, involving transfer of property in land or undivided share of land, as the case may be, the value of supply of service and goods portion in such supply shall be equivalent to the total amount charged, for such supply less the value of land or undivided, share of land, as the case may be, and the value 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. W....
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....chartered engineer registered with the Institution of Engineers (India); or (iii) a licensed surveyor of the respective local body of the city or town or village or development or planning authority. (b) where commencement certificate in respect of the project, is not required to be issued by the competent authority, it is certified by any of the authorities specified in sub-clause (a) above that construction of the project has started on or before the 31st March, 2019; (c) 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 al....
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....in Form at Annexure TV by the [20^th] of May, 2019, option to pay tax at the rates as applicable to item (i) or (ia) or (ib) or (ic) or (id) above, as the case may be, shall be deemed to have been exercised;" We find that only if a promoter has exercised option to pay central tax on construction of apartments at the rates as specified for item 'ie' before the stipulated date i.e. 20.05.2019 the said item 'ie' shall be applicable. If the promoter fails to exercise one time option in the Form at Annexure IV as stipulated 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 (Rat....
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.... residential projects to qualify as 'Infrastructure status'. In response, the Government vide F.No. 354/52/2018-TRU, Government of India Ministry of Finance Department of Revenue (TRU) dated 7th May, 2018 has clarified that "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 under Notification F. No. 13/6/2009-INF, dated the 30th March, 2017 of MOF (DEA), attract concessional GST of 8% (the value of the undivided share of land is included in the price 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. W....