Author: admin_gst

GST on Transfer of Property under Tripartite Agreement
By: – CASanjay Kumawat
Goods and Services Tax – GST
Dated:- 20-12-2017

(Continue from Part-I)
STAGE III: SALE/TRANSFER OF FLATS BY THE LANDOWNER
* Taxability of transfer/sale of flats by the landowner
In normal parlance, in tri-partite agreements, the under-construction flats are transferred by the builder to the land owner. The tax on these flats is paid as and when the pre-defined level of construction is reached. Thus, the builder pays the tax on these flats just like he pays the tax on the flats sold to independent buyers. However, if the land owner further sells these under construction flats, he shall also be liable to pay the tax as it will be treated as an independent transaction.
As per Clause 5(b) to Schedule II to CGST Act, 2017 read with Section 7 of the CGST Act, 2017, reads as follows:-
"(b) construction of a complex, building, civil structure or a part thereof, including a complex or bu

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after completion certificate or the occupancy certificate, whichever is earlier, and then in that case GST shall not be applicable in accordance with Clause 5 of the Schedule-III of the CGST Act, 2017.
STAGE IV: SALE/TRANSFER OF FLATS BY THE BUILDER/DEVELOPER
Taxability of transfer/sale of flats by the Builder/Developer
In case of builder/developer, same ratio shall apply as discussed in case of the sale of flats by the landowner. Accordingly, if builder sales under construction flats then it will be considered as supply of construction services in accordance with Clause 5(b) of the Schedule-II of the CGST Act, 2017, accordingly, GST will be applicable.
Alternatively, where entire consideration has been received after obtaining completion certificate or the first occupancy certificate, whichever is earlier, and then in that case GST shall not be applicable in accordance with Clause 5 of the Schedule-III of the CGST Act, 2017.
STAGE V: TIME OF SUPPLY
Relevant provisions for

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ax on goods shall arise at the time of supply, as determined in accordance with the provisions of this section.
(2) The time of supply of goods shall be the earlier of the following dates, namely:-
* the date of issue of invoice by the supplier or the last date on which he is required, under sub-section (1) of section 31, to issue the invoice with respect to the supply; or
* the date on which the supplier receives the payment with respect to the supply.
STAGE VI: VALUATION
Relevant provisions for Valuation under GST
As per section 15 of the Act, 2017, (1) The value of a supply of goods or services or both shall be the transaction value, which is the price actually paid or payable for the said supply of goods or services or both where the supplier and the recipient of the supply are not related and the price is the sole consideration for the supply.
(2) The value of supply shall include
* …………..
* …………..
* &he

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f supply is not determinable under clause (a) or clause (b), be the value of supply of goods or services or both of like kind and quality;
(d) if the value is not determinable under clause (a) or clause (b) or clause (c), be the sum total of consideration in money and such further amount in money that is equivalent to consideration not in money as determined by the application of rule 30 or rule 31 in that order.
STAGE VII: INPUT TAX CREDIT
Relevant provisions for Input Tax Credit under GST
As per section 16 of the CGST Act, 2017,
(1) Every registered person shall, subject to such conditions and restrictions as may be prescribed and in the manner specified in section 49, be entitled to take credit of input tax charged on any supply of goods or services or both to him which are used or intended to be used in the course or furtherance of his business and the said amount shall be credited to the electronic credit ledger of such person.
(2) Notwithstanding anything contained in

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redit shall be restricted to so much of the input tax as is attributable to the purposes of his business.
(2) Where the goods or services or both are used by the registered person partly for effecting taxable supplies including zero-rated supplies under this Act or under the Integrated Goods and Services Tax Act and partly for effecting exempt supplies under the said Acts, the amount of credit shall be restricted to so much of the input tax as is attributable to the said taxable supplies including zero-rated supplies.
(3) The value of exempt supply under sub-section (2) shall be such as may be prescribed, and shall include supplies on which the recipient is liable to pay tax on reverse charge basis, transactions in securities, sale of land and, subject to clause (b) of paragraph 5 of Schedule II, sale of building.
(4)……………………………
(5) Notwithstanding anything contained in sub-section (1) of section 16 an

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from landowner's view]:
* Result in transfer of interest in land (TDRs result in Sale of land):
* Taxability: Not taxable under GST as per Clause 5 of the Schedule-III of the CGST Act, 2017 read with Section 7 of the CGST Act, 2017.
Input Tax Credit: Common credits need to be reversed as per section 17(2) & (3) of the CGST Act, 2017.
Result in non-transfer of interest in land (License to occupy land):
* Taxability: Taxable under GST as per Clause 2(a) of the Schedule-II of the CGST Act, 2017 read with Section 7 of the CGST Act, 2017.
Time of supply: Receipt of license amounts to advance receipt of consideration in kind. Hence, date when license are received will be time of supply.
Valuation: Value is to be determined as per Rule 27 of the CGST Rules, 2017.
Input Tax Credit: Input tax credit is available as per section 16 read with section 17 of the CGST Act, 2017.
Rate of Tax- 18%
Transfer of flats by the builder/developer to the landowner [from builder's/developer'

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obtaining the requisite approvals, the flats meant for landowner and builder are identified and a Supplementary Agreement is entered into for this purpose. It can be said that upon entering into such Supplementary Agreement the landowner recognises the receipt of services in his books of accounts. Or sometimes, the landowner may recognises the receipt of services (flats) only at the time of handing over of flats to him. But from builder's point of view it would be very difficult to conclude when the landowner recognises receipt of service. In this connection, a person may refer to the CBEC Instruction F.No.354/311/2015 Dt. 20.01.2016, wherein in the context of point of taxation under service tax it has been clarified as,
“Service tax is liable to be paid by the builder/developer on the 'construction service' involved in the flats to be given to the land owner, at the time when the possession or right in the property of the said flats are transferred to the land owner by entering int

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icate or first occupancy certificate, whichever is earlier (Construction services):
* Taxability: GST is payable as it is supply of services as per clause 5(b) of the Schedule-II of the CGST Act, 2017 read with Section 7 of the CGST Act, 2017.
Time of supply for Continuous supply of service: On stage of completion of supply and date on which advance received.
Valuation: Value is to be determined as per section 15 of the CGST Act, 2017 read with Rule 27 of the CGST Rules, 2017, if required.
Input Tax Credit: Input tax credit is not available as it is restricted by section 17(5) (c) & (d) of the CGST Act, 2017.
Rate of Tax- 18% subject to paragraph 2 of the Notification No. 8/2017-Integrated Tax (Rate) dated 28.06.2017 (i.e., value of land is to be received where consideration includes the same)
Transfer of flats by the builder/developers
* Entire consideration received after obtaining completion certificate or first occupancy certificate, whichever is earlier (Sale of flat

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Feedback requested on user-experience of GST application
GST
Dated:- 20-12-2017

F. No.12 /Member [IT]/2017
MINISTRY OF FINANCE
DEPARTMENT OF REVENUE
CENTRAL BOARD OF EXCISE & CUSTOMS
Date: 19th December 2017
To,
All Principal Chief Commissioners/Principal Director Generals/Chief
Commissioners/Director Generals/ Principal Commissioners/Principal ADG/
Commissioners/ Additional Director Generals
Subject: User experience on GST-ACES
Based on the feedback from the field formations with regard to the user experience for the CBEC-GST application, intense efforts are underway to bring about the required changes to improve the following areas, urgently:
1. Log in to AIO
2. Log in to applications
3. Navigation in the GST ap

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ble at www.cbec.gov.in).
D. We are hopeful that these fundamental issues which are the building blocks for providing public services on a digital platform by CBEC will be resolved at the earliest, with constant and vigilant monitoring.
Yours faithfully
( S.K.Panda )
Member (IT), CBEC
Encl: As Above
Weekly Report for User Experience
The first Report to be sent on 1st January 2018 for the performance during the period 26th to 29th December 2017;
The second report to be sent on 8th January, for the performance during the period 1st January to 5th January 2018;
The third report to be sent on 16th January, for the performance during the period 8th January to 12th January 2018.
These reports may be sent by email to with a copy to CBEC.G

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Procedure for Purchase Return in GST
Query (Issue) Started By: – SAFETAB LIFESCIENCE Dated:- 20-12-2017 Last Reply Date:- 22-12-2017 Goods and Services Tax – GST
Got 4 Replies
GST
Dear Sir,
We wish to return part quantity of our purchased materials as rejection. It is only purchase return. What documents to be given to the supplier. Can we raise Debit Note to our Suppliers ???
We were informed that we can raise Debit Note or Credit Note only to our customers only and not to our

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Refund of unutilised ITC
Query (Issue) Started By: – Archna Gupta Dated:- 20-12-2017 Last Reply Date:- 21-12-2017 Goods and Services Tax – GST
Got 7 Replies
GST
Please clarify with reference of relevant section and rule that can we claim refund of unutilised ITC on capital goods in case of 100% zero rated supply.
Reply By KASTURI SETHI:
The Reply:
This issue has already been discussed in this forum. Pl. go through replies posted by experts in November and December,2017.
Reply By

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Proactive Measures taken by Government for Smooth Implementation of GST for MSME
GST
Dated:- 20-12-2017

Government has taken several proactive measures for smooth implementation of GST for MSMEs including:
* Exemption to Khadi fabric sold through Khadi and Village Industries Commission (KVIC) and KVIC certified institutions/outlets;
* Majority of items produced by the MSMEs in the band of 28% tax slab brought to lower slabs;
* Composition levy extended upto turnover worth &#8

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How to get refund under GST
Query (Issue) Started By: – THYAGARAJAN KALYANASUNDARAM Dated:- 20-12-2017 Last Reply Date:- 20-12-2017 Goods and Services Tax – GST
Got 2 Replies
GST
Dear experts,
One of my client had supplied and installed software to the customer and billed in the month of Dec 2016 , Feb and March 2017. When we approach the payment now from the customer it was not accounted in the previous year. Now they are asking them to issue GST invoice . If my client issue GST invoice with GST tax now , then this will be double taxation on same goods. How to get refund from the earlier tax remittance. Is there any way out of getting refund from the government.
It's very urgent. Thanks in advance
Reply By KASTURI SETHI

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Seeks to limit the maximum late fee payable for delayed filing of return in FORM GSTR-3B from October, 2017 onwards
G.O.Ms.No. 292 Dated:- 20-12-2017 Telangana SGST
GST – States
Telangana SGST
Telangana SGST
GOVERNMENT OF TELANGANA
REVENUE (COMMERCIAL TAX-II) DEPARTMENT
G.O.Ms.No. 292
Dated: 20-12-2017
NOTIFICATION
In exercise of the powers conferred by Section 128 of the Telangana Goods and Services Tax Act, 2017 (Act No.23 of 2017) (hereafter in this notification referred t

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Seeks to prescribe quarterly furnishing of FORM GSTR-1 for those taxpayers with aggregate turnover of upto 1.5 crore
G.O.Ms.No. 294 Dated:- 20-12-2017 Telangana SGST
GST – States
Telangana SGST
Telangana SGST
GOVERNMENT OF TELANGANA
Revenue (CT-II) Department
G.O.Ms.No. 294
Dated: 20-12-2017
NOTIFICATION
In exercise of the powers conferred by section 148 of the Telangana Goods and Services Tax Act, 2017 (Act No.23 of 2017), the State Government, on the recommendations of the Council, notifies the registered persons having aggregate turnover of up to 1.5 crore rupees in the preceding financial year or the current financial year, as the class of registered persons who shall follow the special procedure as detailed below fo

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Telangana Goods and Services Tax (Sixth Amendment) Rules, 2017
G.O.Ms No.293 Dated:- 20-12-2017 Telangana SGST
GST – States
Telangana SGST
Telangana SGST
GOVERNMENT OF TELANGANA
Revenue (CT-II) Department
G.O.Ms No.293
Date: 20.12.2017
NOTIFICATION
In exercise of the powers conferred by Section 164 of the Telangana Goods and Services Tax Act, 2017 (Act No. 23 of 2017), the State Government hereby makes the following Rules further to amend the Telangana Goods and Services Tax Rules, 2017, namely:-
(1) These Rules may be called the Telangana Goods and Services Tax (Sixth Amendment) Rules, 2017.
(2) They shall deemed to have come into force with effect from 15th day of November, 2017.
2. In the Telangana Goods and Services Tax Rules, 2017,-
(i) in Rule 43, after sub-rule (2), the following explanation shall be inserted, namely:-
“Explanation – For the purposes of Rule 42 and this rule, it is hereby clarified that the aggregate value of exempt supplies shall excl

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ment or issuance of the said notice, order or certificate in such Forms as appended to these rules.”;
(iv) after Rule 107, the following Rule shall be inserted, namely:-
“107A. Manual filing and processing. – Notwithstanding anything contained in this Chapter, in respect of any process or procedure prescribed herein, any reference to electronic filing of an application, intimation, reply, declaration, statement or electronic issuance of a notice, order or certificate on the common portal shall, in respect of that process or procedure, include manual filing of the said application, intimation, reply, declaration, statement or issuance of the said notice, order or certificate in such Forms as appended to these rules.
(v) after Rule 109, the following Rule shall be inserted, namely:-
“109A. Appointment of Appellate Authority-
(1) Any person aggrieved by any decision or order passed under this Act or the Central Goods and Services Tax Act may appeal to the Joint Commissioner (Appeals)

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hall be substituted, namely: –
Provided further that the Central Government with the approval of the Chairperson of the Council may terminate the appointment of the Technical Member at any time.
(vii) after the “FORM GST RFD-01”, the following forms shall be inserted, namely:-
FORM-GST-RFD-01 A
[See rules 89(1) and 97A]
Application for Refund (Manual)
(Applicable for casual taxable person or non-resident taxable person, tax deductor, tax collector and other registered taxable person)
1.
GSTIN/Temporary ID
 
2.
Legal Name
 
3.
Trade Name, if any
 
4.
Address
 
5.
Tax period (if applicable)
From (Year) (Month) To (Year) (Month)
6.
Amount of Refund Claimed(Rs.)
Act
Tax
Interest
Penalty
Fees
Others
Total
Central tax
 
 
 
 
 
 
State/UT tax
 
 
 
 
 
 
Integrated tax
 
 
 
 
 
 
Cess
 
 
 
 
 
 

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i)]
I hereby declare that the refund of ITC claimed in the application does not include ITC availed on goods or services used for making 'nil' rated or fully exempt supplies.  
Signature Name –
Designation / Status
 
DECLARATION [rule 89(2)(f)]
I hereby declare that the Special Economic Zone unit /the Special Economic Zone developer has not availed of the input tax credit of the tax paid by the applicant, covered under this refund claim.  
Signature
Name –
Designation / Status
 
SELF- DECLARATION [rule 89(2)(l)]
I/We ____________________ (Applicant) having GSTIN/ temporary Id -, solemnly affirm and certify that in respect of the refund amounting to Rs. / with respect to the tax, interest, or any other amount for the period fromto-, claimed in the refund application, the incidence of such tax and interest has not been passed on to any other person.  
Signature
Name –
Designation / Status
(This Declaration is not required to be furn

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lated ITC) – calculation of refund amount
(Amount in Rs.)
Turnover of zero rated supply of goods and services
Net input tax credit
Adjusted total turnover
Refund amount  (1×2/3)
1
2
3
4
 
Statement-5A [rule 89(4)]
Refund Type: On account of supplies made to SEZ unit / SEZ developer without payment of tax (accumulated ITC) – calculation of refund amount
(Amount in Rs.)
Turnover of zero rated supply of goods and services
Net input tax credit
Adjusted total turnover 
Refund amount  (1×2/3)
1
2
3
4
 
FORM-GST-RFD-01 B
[See rules 91(2), 92(1), 92(3), 92(4), 92(5) and 97A]
Refund Order details
1. 
ARN
 
2. 
GSTIN / Temporary ID
 
3. 
Legal Name
 
4. 
Filing Date
 
5. 
Reason of Refund
 
6. 
Financial Year
 
7. 
Month
 
8. 
Order No.:
 
9. 
Order issuance Date:
 
10. 
Payment Advice No.:
 
11. 
Payment Advice

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Commissioner of CGST And Central Excise Versus Industrial Steel Rolling Mills
Central Excise
2018 (2) TMI 275 – CESTAT MUMBAI – TMI
CESTAT MUMBAI – AT
Dated:- 20-12-2017
E/87330/2017 – A/91790/2017
Central Excise
Shri M V Ravindran, Member (Judicial)
For the Appellant : Mr. A.B. Kulgod
For the Respondent : None
ORDER
This appeal is directed against Order-in-Appeal No.SK/111/TH-I/2017 dated 12/06/2017 passed by the Commissioner of Central Excise (Appeals), Mumbai I.
2. Heard the learned Authorised Representative. The respondent is unrepresented despite notice. Since the matter lies in a narrow compass I take up the appeals in the absence of any representation from the respondent.
3. The issue that falls for consideration in this case is regarding eligibility to avail CENVAT credit on MS structures, HR plates, angles, channels, beams, etc. The adjudicating authority has come to the conclusion that CENVAT credit availed by the respondent herein is incorrect and

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rolling mill machinery and its accessories as, I find from the grounds of appeal the Revenue is not disputing the certificate issued by the Chartered Engineer which was produced before the first appellate authority. The first appellate authority has correctly appreciated the evidence on record and also followed the law as laid down by the Tribunal. The finding of the first appellate authority are very detailed in nature which I would like to reproduce:
“7. The Certificate dated 17/11/2016 issued by M/s Shree Technical Consultants & Valuers, the Chartered Engineers, certifies that the appellant had purchased the disputed goods and produced/fabricated the Rolling Mill Machinery &its accessories, in their factory and that the said machinery are installed in factory as Capital Goods for manufacturing of finished goods. From scrutiny of various photographs submitted in the appeal docket, I observe that these inputs were used in the manufacture of machinery which was used in the factory.

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achinery are also squarely covered under the definition of Capital Goods in terms of Rule 2(a)(A)(i) and (iii) of the CCR, 2004.
9. In this regard I draw support from the following decisions –
i) LSR Speciality Oils Pvt. Ltd. v. Commissioner of C. Ex., Belapur [2014 (313) ELT 426 (Tri. – Mumbai)]
Cenvat credit – MS angle and HR sheet – Use of, for fabrication of storage tanks – Entitlement to Cenvat credit on the MS angle and HR sheet – HELD : Storage tanks have been specified as capital goods and inputs used in the manufacture of capital goods are eligible for Cenvat credit – Thus, Cenvat credit cannot be denied on the MS angle and HR sheet – Rules 2(a) and 2(k) of Cenvat Credit Rules, 2004. [para 6] Appeal allowed.
ii) Dhampur Sugar Mills Ltd. v Commissioner Of Central Excise, Meerut-II 2016 (344) ELT 285 (Tri. – All.)
Cenvat credit – Capital goods – AC corrugated sheet – Used in boiler – Without its use, it was not possible to generate steam in boiler, which was essential

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M/s. Indus Integrated Information Management Limited Versus Principal Commissioner of CGST & CS, Kolkata And Ors.
Service Tax
2018 (6) TMI 758 – CALCUTTA HIGH COURT – 2018 (12) G. S. T. L. 492 (Cal.)
CALCUTTA HIGH COURT – HC
Dated:- 20-12-2017
W.P. 26509 (W) of 2017
Service Tax
Mr. Subrata Talukdar, J.
For The Petitioner : Mr. J. K. Mittal Mr. Paritosh Sinha Ms. Aritra Chakraborty And Mr. Parag Chaturvedi
For The Respondent : Mr. Koushik Chanda Mr. Tarunjyoti Tewari And Mr. Somnath Ganguli Mr. Bhaskar Prosad Banerjee
ORDER
The short point of challenge in this writ petition is the final order of determination of demand dated 14th July, 2017 issued by the Respondent No.1/Principal Commissioner, Central Tax, Kolkata North CGST & CX, Commissionerate, Kolkata determining the Service Tax finally payable by the petitioner/Assessing Company along with interest and penalty.
During adjudication, the attention of this Court is drawn to its earlier order dated 29th Nove

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have been completed by and within 13th May, 2017 since the notice of demand was issued on 13th May, 2016.
Additionally, Learned Counsel points out, the Hearing/Adjudicating Authority under Section 4 (B) (b) (supra) was under the lawful obligation to provide reasons for not concluding the proceedings within the period provided under Section 4 (B) (b) (supra). In the absence of such reasons, the order determining the demand dated 14th July, 2017 cannot be sustained.
The further point argued by Mr. Mittal is that the Respondent No.2 is the only officer who heard the petitioner and, therefore, the Demand having been decided by a different Respondent No.1, cannot be sustained. Relying on the Authority of AIR 1959 SC 308 learned Counsel argues that it is now trite law that the person who heard is the person who shall ultimately decide.
Arguing on behalf of the Respondents /Authority, Learned Additional Solicitor General (ASG), Mr. Kaushik Chanda takes this Court to the provisions of Secti

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ubmits that there is no infraction of the principles of natural justice or limitation qua the petitioner.
Next, taking this Court to Section 174(2) of the 2017 Act, learned ASG argues that the Repeal and Savings provisions makes it abundantly clear vide 174(2) (e) thereof that the repeal and substitution of the law shall not effect any investigation, enquiry or verification.
Learned ASG therefore submits on the purposive interpretation of the legal provisions in the light of the deeming provisions under Section 3(supra) that it never was the intention of the legislature to frustrate a pending/continuing adjudication.
Having considered the submissions as well as the materials placed, this Court finds that the arguments advanced by learned Counsel for the petitioner, are based on hyper technicalities which, in the considered view of this Court, are not of a nature so as to derail the adjudication process. This Court is satisfied that the statutory provisions relied upon by Ld. ASG to

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CGST TRANSTISTIONAL CREDIT
Query (Issue) Started By: – Richa Goyal Dated:- 19-12-2017 Last Reply Date:- 22-12-2017 Goods and Services Tax – GST
Got 3 Replies
GST
Sir,
1) CGST transitional credit takin in "ALL OTHER ITC" in GSTR -3B in July 2017 as the trans-1 form was not available
2)CGST credit rightly taken in FORM TRANS-1 in October 17.
3) CGST transitional credit was reversed in FORM GSTR 2 as there was double availment of credit but the system is not reflecting the

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Need Help in GST Rate
Query (Issue) Started By: – CAHitesh Patel Dated:- 19-12-2017 Last Reply Date:- 22-12-2017 Goods and Services Tax – GST
Got 5 Replies
GST
WHAT IS GST RATE OF SOIL AND BUILDING DEBRIS?
IS THERE SAME RATE OD SOIL AND SAND?
IS THERE BUILDING DEBRIS INCLUDE IN SCRAP?
Reply By Rajagopalan Ranganathan:
The Reply:
Sir,
It is not classifiable under any of the tariff headings specified under CGST Act, 2017. Hence it is not taxable.
Reply By CAHitesh Patel:
The Rep

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Need GST Rate
Query (Issue) Started By: – CAHitesh Patel Dated:- 19-12-2017 Last Reply Date:- 7-5-2018 Goods and Services Tax – GST
Got 1 Reply
GST
Need GST RATE of following item 1. sale of debris, demolished destructive material at construction site. exclude iron and steel
Reply By YAGAY and SUN:
The Reply:
You need to dispose off such debris, demolished destructive material as the MOEFCC Construction and Demolition
Waste Management Rules, 2016.
Discussion Forum – Knowledge

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Tran-1 credit for old Capital Goods
Query (Issue) Started By: – Avishek Modi Dated:- 19-12-2017 Last Reply Date:- 20-12-2017 Goods and Services Tax – GST
Got 7 Replies
GST
During Jan 2013 we imported machines for our factory (SSI).
Factory was registered under excise but we could not avail MODVAT for the CVD/SAD on the imported machines as our manufacturing turnover never crossed ₹ 1.5 crores and there was no excise payable by us.
Can we take credit for the CVD/SAD on these machines supported by the BOE in the Tran-1 6a?
Reply By Somil Bhansali:
The Reply:
Yes you can avail credit of CVD and SAD in Table 6(a) based on bill of entry.
Reply By KASTURI SETHI:
The Reply:
It is disputed issue. Sword of restriction of one

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GST on Transfer of property under Tripartite Agreement (Part-I)
By: – CASanjay Kumawat
Goods and Services Tax – GST
Dated:- 19-12-2017

Introduction
A typical transaction in this business will entail three parties, namely; builder (or developer), land owning party and flat buyer. The developer enters into a development agreement with landowner, whereby the developer acquires the development rights with respect to the land.
The agreement for transfer of development rights executed between developers and landowners involve payment of consideration by the developers to the landowners for transfer/acquisition of development rights. Such consideration may be in monetary terms or by way of ownership rights of certain percentage of the developed area.
Therefore, an opinion has been sought for the GST on Transfer of Property under Tripartite Agreement.
Stages for discussion are as follows:
* Transfer of Development Rights (TDRs)
* Transfer of some flats to the landowner

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the development activity. However, ownership in land continues with the landowner (i.e., license to occupy land);
* Developer enters into an agreement with a landowner, wherein the right to develop the land is permanently and irrevocably transferred by the landowner to the developer(, i.e., sale of land);
* As a consideration for sale of development right, a fixed consideration or a share in sales proceeds or ownership of certain developed area is given by the developer to the landowner;
* Accordingly, the developer acquires exclusive, permanent and irrevocable rights for development and subsequently transfers (by way of sale, lease, license, etc. to end customers) the entire or certain percentage of the developed area (i.e. apartment, units, plots etc.)
* The developer is allowed to further assign the development rights to any other person, but the landowner is precluded from doing so.
Relevant provisions under GST Act, 2017
* Definition of goods
Section 2(52) of the CGS

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ces for a consideration whether or not in the course or furtherance of business;
* the activities specified in Schedule I, made or agreed to be made without a consideration; and
* the activities to be treated as supply of goods or supply of services as referred to in Schedule II.
(2) Notwithstanding anything contained in sub-section (1),
* activities or transactions specified in Schedule III; or
* such activities or transactions undertaken by the Central Government, a State Government or any local authority in which they are engaged as public authorities, as may be notified by the Government on the recommendations of the Council, shall be treated neither as a supply of goods nor a supply of services.
(3) Subject to the provisions of sub-sections (1) and (2), the Government may, on the recommendations of the Council, specify, by notification, the transactions that are to be treated as-
* a supply of goods and not as a supply of services; or
* a supply of services and n

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nd transferred but ownership in land continues with the landowner (i.e., license to occupy land) , and
* Where TDRs of the land transferred permanently and irrevocably transferred by the landowner to the developer (i.e., sale/transfer of land).
As per 'Clause 2(a) of Schedule-II of the CGST Act, 2017 read with Section 7 of the said Act merits consideration. Under the said clause, any lease, tenancy, easement, licence to occupy land is a supply of services. Accordingly, GST is applicable on license to occupy land being a supply of service.
On other hand, as per 'Clause 5 of Schedule-III of the CGST Act, 2017 read with Section 7 of the said Act, under the said clause, Sale of land and, subject to clause (b) of paragraph 5 of Schedule II, sale of building shall be treated neither as a supply of goods nor a supply of services. Accordingly, GST is not applicable on sale of land.
Thus, acquisition of development rights with respect to a vacant land (not intended solely for resident

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ransferor by the transferee, who accepts the transfer on such terms."
Tenancy
As per Duhaime's Law Dictionary, the term 'tenancy' means 'a contract by which the owner of real property (the landlord), grants exclusive possession of that real property to another person (tenant), in exchange for the tenant's periodic payment of some sum of money (rent)'.
Accordingly, tenancy is the right to occupy real property permanently, for a time which may terminate upon a certain event, for a specific term, for a series of periods until cancelled (such as month-to-month), or at will (which may be terminated at any time). Some tenancy is for occupancy only as in a landlord-tenant situation, or a tenancy may also be based on ownership of title to the property.
Easement
As per section 4 of the Easement Act, 1882 easement defined as an easement is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to

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ot amount to an easement or an interest in the property, the right is called a license"
The determinative test of whether a right is prima facie a lease of immovable property is whether the effect of the instrument of lease is to give the holder the exclusive right of occupation of the land, though subject to certain reservations, or to a restriction of the purposes for which it may be used.
In case of license, only a right to use the property in a particular way or under certain terms is given which permits another person to make use of the property, of which the legal possession continues with the owner. There is no creation of interest in property and merely permission is granted to undertake an activity.
Whether acquisition of development rights constitutes a license of vacant land?
With respect to license, as per the definition and various judicial precedents, it is a settled position that there cannot be a license, if the activity creates an interest in the property.

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portant to discuss the nature of development rights.
What is the legal nature of the transaction involving transfer of development rights?
From the discussions in the preceding paragraphs, it is clear that a transaction involving transfer of developmental rights is not a license of a vacant land. Given the extent and nature of rights transferred, it can be said that the transactions involves outright transfer i.e. 'sale' of development rights.
Whether development rights can be treated as an 'immovable property'?
The term 'immovable property' has not been defined under the GST law. However, as per the General Clauses Act, 1987, 'immovable property' also includes benefits arising out of land, and things attached to the earth, or permanently fastened to anything attached to the earth.
The Courts in India have consistently held that any right associated with an immovable property also partakes the nature of 'immovable property'. Accordingly, benefits arising out of land are also

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rty. The Court held that transferable development rights are benefits arising out of land and must be considered as immovable property.
* In State of Orissa v. Titaghur Paper Mills Co. Ltd.[ 1985 (3) TMI 226 – SUPREME COURT OF INDIA ], the Supreme Court held that bamboo contract was neither a contract for the sale of goods or lease or the grant of an easement. Rather the same conferred upon the company a benefit to arise out of land, namely, the right to cut and remove bamboos which would grow from the soil coupled with ancillary rights and was thus a grant of a profit a prendre which is a benefit arising out of land.
* In Shakti Insulated Wires Limited v. JCIT, it was held that the developmental rights are embedded in the ownership of land only. These were valuable rights inherent in the ownership of land.
Basis the ratio laid out in the above judgments it can be said that development rights a benefit arising from the land and, thus, qualify as 'immovable property'.
Whether a

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D
Taxability of transfer of flats to the landowner by the developer as a consideration
The transfer of development rights by landlord to developer involves payment of consideration. Such consideration is generally given in kind by way of ownership rights of certain percentage of the developed area. The developer receives consideration normally in two ways:
* From landowner, in the form of land /development rights; and
* From other buyers, in the form of money.
For instance assume, GKC developers limited enters into a agreement with land owner Mr. Nagarjuna whereas in lieu of this agreement a total of 1000 residential units will be constructed by GKC ltd on the land provided by Mr. Nagarjuna, whereas 40% of the units i.e. 400 units shall be given to Mr. Nagarjuna and rest 600 units shall be taken by GKC ltd. Both can commercially sell the units in the open market. Land owner gets 400 units of flats in lieu of the land given and Developer gets 600 units of flats in lieu of the

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Principal Commissioner of Central Goods and Service Tax (Earlier Known as Central Excise, Gurgaon-I), Gurgaon Versus M/s Barmalt India Private Limited
Central Excise
2018 (1) TMI 490 – PUNJAB AND HARYANA HIGH COURT – 2018 (11) G. S. T. L. 302 (P & H)
PUNJAB AND HARYANA HIGH COURT – HC
Dated:- 19-12-2017
CEA No. 35 of 2017
Central Excise
MR. AJAY KUMAR MITTAL, J.
For The Appellant-Revenue : Mr. Saurabh Goel, Senior Standing Counsel
Ajay Kumar Mittal, J.
1. This appeal has been preferred by the appellant-revenue under Section 35G of the Central Excise Act,1944 (in short, “the Act”) against the impugned order dated 11.01.2017, Annexure A-4, passed by the Customs, Excise & Service Tax Appellate Tribunal, Chandigarh Bench (in short, “the Tribunal”) in Appeal No. E/1506/2011, claiming following substantial questions of law:-
(i) “Whether in the facts and circumstances of the case, the Tribunal has committed a grave error of law in allowing the appeal of the respon

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ure of Malt & Malt Extract, other products like Chhilka, Bhusa and Sprouts falling under CETH 2301 attracting nil duty are also produced. They also pointed out that the party manufactured and cleared Malt, Malt Extract, Chhilka, Bhusa, Dundali and Sprouts using enzymes formaldehyde, manufact caustic soda, flakes etc. on which Cenvat Credit has been availed by it. The respondent assessee cleared Malt & Malt Extract on payment of applicable duty and Chhilka, Bhusa, Dundali and Sprouts at nil rate of duty. The assessee produced and cleared dutiable as well as exempted products using inputs on which Cenvat Credit has been availed without maintaining separate accounts for receipt, consumption and inventory of input and/or input service as prescribed under Rule 6(2) of Cenvat Credit Rules, 2004 (in short, “the Rules”). The assessee cleared exempted products valued at Rs. 2,32,09,621/- at nil rate of duty during the period from February 2008 to September 2008 and failed to pay an amount equal

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e is engaged in the manufacturing of Malt and Malt extract. It is availing Cenvat Credit on inputs, capital goods and input services. During the course of manufacturing of said products, certain waste is generated that is called chhilka, dundli, bhushi and sprout which attract nil rate of duty. According to the appellant-revenue, as the assessee manufactures both dutiable as well as exempted final products, it is required to pay 10% of the value of exempted goods as per Rule 6(3) of the Rules. Accordingly, a show cause notice was issued to the assessee which was adjudicated by the appropriate authority and a demand of 10% of the value of the exempted goods was confirmed alongwith interest and equivalent penalty. The appeal filed by the assessee before the Commissioner (Appeals) was dismissed. However, the Tribunal relying upon the decisions of the Bombay High Court in Hindalco Industries Limited vs. Union of India, 2015(315) ELT 10 (Bom.) and Allahabad High Court in Balrampur Chini Mil

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Evergreen Seamless Pipes & Tubes Pvt. Ltd. Versus Union of India, through the Secretary, Ministry of Finance, Dept. of Revenue, & Ors.
GST
2018 (4) TMI 409 – BOMBAY HIGH COURT – TMI
BOMBAY HIGH COURT – HC
Dated:- 19-12-2017
WRIT PETITION NO. 12378 OF 2017
GST
S. C. Dharmadhikari and  Smt. Bharati H. Dangre, JJ.
Mr. Raghuraman a/w Mr. Raghavendra and Mr. Prabhakar K. Shetty for the Petitioner
Mr. Manglamber Dwivedi a/w Mr. Jitendra Brijbhushan Mishra for the Responden

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M/s Samrat Carriers (Regd) Thru' Its Prop Versus State Of U.P. And 3 Others
GST
2018 (4) TMI 608 – ALLAHABAD HIGH COURT – 2018 (11) G. S. T. L. 167 (All.)
ALLAHABAD HIGH COURT – HC
Dated:- 19-12-2017
Writ Tax No. -818 of 2017
GST
Ms Bharati Sapru And Mr. Saumitra Dayal Singh, JJ.
For The Petitioner : Suyash Agarwal
For The Respondent : C.S.C.,A.S.G.I.,Gaurav Tirari
ORDER
Heard Shri Suyash Agrawal, learned counsel for the petitioner and Shri C.B. Tripathi, learned Standing Counsel for the respondent.
This writ petition has been filed by the petitioner to challenge the order dated 11.11.2017 passed under Section 129(1) of UPGST Act (hereinafter referred to as the 'Act') and the penalty notice dated 11.11.20

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d the same in response to the penalty notice. The penalty proceeding is stated to be still pending as is apparent from the short counter affidavit filed in the writ petition.
Insofar as the imposition of penalty is concerned, the matter is still pending before the Proper Officer. We, therefore, do not propose to enter into the validity of the penalty proceedings at this stage.
However, insofar as the seizure of goods are concerned, in view of the fact that the goods have been seized on a single reason of absence of TDF without any other allegation in respect of illegal import of the goods into the State of U.P., at this stage, we dispose of the writ petition with a direction that subject to the petitioner furnishing security of the amount

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Merchant export with 18% GST
Query (Issue) Started By: – Priya v Dated:- 18-12-2017 Last Reply Date:- 19-12-2017 Goods and Services Tax – GST
Got 4 Replies
GST
I have an aggregated order of Pharma APIs and am a Merchant exporter. Is it compulsory for me to buy the goods from Manufacturers with .1% GST as I have to submit all my trade value data to supplier through Shipping bill. Can i buy with 18% GST and claim input credit in GST return ? I will execute the LUT for the export. Two

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GSTN brings in option for monthly, quarterly filing of forms
GST
Dated:- 18-12-2017

New Delhi, Dec 18 (PTI) Goods and Services Tax Network (GSTN), the IT backbone of the new tax regime, today said it has put a new function on its portal to allow taxpayers choose the frequency of filing GSTR 1 form on quarterly or monthly basis.
Taxpayers with annual aggregate turnover up to ₹ 1.5 crore in the previous financial year or anticipated in the current financial year can avail the

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India Hikes Customs Duty on Imported Electronics, Affecting IGST Rates; Notifications Issued to Stakeholders.
Notifications
Customs
Customs duty electronic goods increased – Effective rates o

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PLACE FOR RCM
Query (Issue) Started By: – SAFETAB LIFESCIENCE Dated:- 18-12-2017 Last Reply Date:- 16-2-2018 Goods and Services Tax – GST
Got 1 Reply
GST
Dear Experts,
We have participated an event for business promotion at Maharastra (27). Our GST registration is in Puducherry(34) only. They provided stall for us.
The Service provider has raised GST bill without GST and informed us, we(STATE 34), have to pay GST under RCM and take credit of ITC.
His Bill says,
1. Descriptio

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Shankar Mohan Versus Intelligence Inspector, The Intelligence Officer, Commissioner Goods & Service Tax Authority, State Of Kerala
GST
2018 (1) TMI 179 – KERALA HIGH COURT – [2017] 1 GSTL 33 (Ker), 2018 (10) G. S. T. L. 211 (Ker.)
KERALA HIGH COURT – HC
Dated:- 18-12-2017
WP (C). No. 40622 of 2017 (C)
GST
P. B. Suresh Kumar, J.
For the Petitioner : Sri. C. K. Sreejith
For the Respondent : Sri. V. K. Shamsudheen
ORDER
Petitioner seeks release of the goods detained by the

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Telangana Goods and Services Tax (Fifth Amendment) Rules, 2017
G.O.Ms.No. 287 Dated:- 18-12-2017 Telangana SGST
GST – States
Telangana SGST
Telangana SGST
GOVERNMENT OF TELAGANA
Revenue (CT-II) Department
G.O.Ms.No. 287
Dated: 18-12-2017
NOTIFICATION
In exercise of the powers conferred by Section 164 of the Telangana Goods and Services Tax Act, 2017 (Act No.23 of 2017), the State Government hereby makes the following Rules further to amend the Telangana Goods and Services Tax Rules, 2017, namely:-
(1) These Rules may be called the Telangana Goods and Services Tax (Fifth Amendment) Rules, 2017.
(2) Save as otherwise provided in these Rules, they shall come into force on the date of their publication in the Official Gazette.
In the Telangana Goods and Services Tax Rules, 2017,-
(i) in Rule 3, with effect from 13th day of October, 2017, for sub-rule (3A), the following sub-rule shall be substituted, namely:-
“(3A)Notwithstanding anything contained in sub-rules (1)

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, figures and letters “on or before 31st December, 2017” shall be substituted.
(iii) in Rule 45, in sub-rule (3), 28th day of October, 2017, after the words “succeeding the said quarter”, the words “or within such further period as may be extended by the Commissioner by a notification in this behalf:
Provided that any extension of the time limit notified by the Commissioner of State tax or the Commissioner of Union territory tax shall be deemed to be notified by the Commissioner.” shall be inserted;
(iv) after Rule 46, with effect from 13th day of October, 2017, the following Rule shall be inserted, namely:-
“46A. Invoice-cum-bill of supply.- Notwithstanding anything contained in Rule 46 or Rule 49 or Rule 54, where a registered person is supplying taxable as well as exempted goods or services or both to an unregistered person, a single “invoice-cum-bill of supply” may be issued for all such supplies.”;
(v) in Rule 54, with effect from 13th day of October, 2017, in sub-rule (2),

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pplication may be filed by, –
(a) the recipient of deemed export supplies; or
(b) the supplier of deemed export supplies in cases where the recipient does not avail of input tax credit on such supplies and furnishes an undertaking to the effect that the supplier may claim the refund”;
(viii) in Rule 96, in sub-rule (2), with effect from 28th day of October, 2017, the following provisos shall be inserted, namely:-
“Provided that where the date for furnishing the details of outward supplies in FORM GSTR-1 for a tax period has been extended in exercise of the powers conferred under section 37 of the Act, the supplier shall furnish the information relating to exports as specified in Table 6A of FORM GSTR-1 after the return in FORM GSTR-3B has been furnished and the same shall be transmitted electronically by the common portal to the system designated by the Customs: Provided further that the information in Table 6A furnished under the first proviso shall be auto-drafted in FORM GSTR-1

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period.”
(x) in FORM GST CMP-02, with effect from 13th day of October, 2017, for the words, figures and brackets “See Rule 3(2)”, the words, figures, brackets and letter “See rule 3(3) and 3(3A)” shall be substituted;
(xi) with effect from 13th day of October, 2017, in FORM GSTR-1, for Table 6, the following shall be substituted, namely:-
“6. Zero rated supplies and Deemed Exports
GSTIN of recipient
Invoice details
Shipping bill/
Bill of export
Integrated Tax
Cess
No.
Date
Value
No.
Date
Rate
Taxable value
Amt.
1
2
3
4
5
6
7
8
9
10
6A. Exports
6B. Supplies made to SEZ unit or SEZ
Developer
6C. Deemed exports
“;
(xii) With effect from 13th day of October, 2017, in FORM GSTR-1A, for Table 4, the following shall be substituted, namely:-
“4. Zero rated supplies made to SEZ and deemed exports
GSTIN of recipient
Invoice details
Integrated Tax
Cess
No.
Date
Value
Rate
Taxable value
Tax amount
1
2
3
4
5
6
7
8
4A. Supplies made to SEZ unit

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