In Re: Telstra Telecommunication Pvt. Ltd.
GST
2019 (3) TMI 592 – AUTHORITY FOR ADVANCE RULING, MAHARASHTRA – 2019 (22) G. S. T. L. 546 (A. A. R. – GST)
AUTHORITY FOR ADVANCE RULING, MAHARASHTRA – AAR
Dated:- 23-1-2019
GST-ARA-82/2018-19/B-12
GST
SHRI B. TIMOTHY, AND SHRI B. V. BORHADE, MEMBER
PROCEEDINGS
(Under section 98 of the Central Goods and Services Tax Act, 2017 and the Maharashtra Goods and Services Tax Act, 2017)
The present application has been filed under section 97 of the Central Goods and Services Tax Act, 2017 and the Maharashtra Goods and Services Tax Act, 2017 [hereinafter referred to as “the CGST Act and MGST Act”] by TELSTRA TELECOMMUNICATION PVT.LTD., the applicant, seeking an advance ruling in respect of the following questions :-
a) Whether in the facts and circumstances in the case of supply involving leased circuit services where in pan India contract for supply of such services is entered into without any State wise break up for the su
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t the provisions of both the CGST Act and the MGST Act are the same except for certain provisions. Therefore, unless a mention is specifically made to such dissimilar provisions, a reference to the CGST Act would also means a reference to the same provision under the MGST Act. Further to the earlier, henceforth for the purposes of this Advance Ruling, a reference to such a similar provision under the CGST Act/MGST Act would be mentioned as being under the “GST Act”.
02. FACTS AND CONTENTION – AS PER THE APPLICANT
The submissions, as reproduced verbatim, could be seen thus-
2. Facts of the Case:
2.1 The Applicant is primarily engaged in providing internet connectivity services. It has been granted a license by the Department of Telecommunications in this regard. As a part of the internet connectivity services, the customers may also mandate the Applicant to provide colocation services and leasing of certain customer premises equipment i.e. routers, modems, etc.
2.2 In order to pr
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vendor who is providing leased circuit services across the country, such as Tata Teleservices, Bharti Airtel etc. to provide the last mile connectivity service. A flow diagram is attached as Annexure A to explain how the service is rendered to the customer via POP of the Applicant located in a State to the location of customer.
3. Interpretation of Law:
At the outset, the Applicant would like to submit that it has Obtained registration in terms of Section 22 (2) of the CGST Act. Consequently, the Applicant shall qualify as a 'registered person' in terms of the CGST Act and the provisions of the CGST Act shall apply accordingly. The interpretation of applicable law with regard to the internet connectivity services provided by the Applicant is as follows:
3.1 Registration requirement:
3.1.1 The Applicant would like to submit that in terms of Section 22 of the CGST Act, a supplier is liable to be registered in the State from where he makes a taxable supply. In other words,
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on 22(1) of CGST Act as mentioned above, a supplier is liable to take registration in the State from where he makes taxable supply of service. While in case of supply of internet connectivity service, it is not feasible to determine from where the supply is made since the data travels from one POP to another pop. This phenomenon is illustrated via a diagram showing the possible flow of data:
3.2.3 Further, POP cannot be considered as fixed establishment. Fixed establishment as defined under Section 2(50) of CGST Act means a place (other than the registered place of business) which is characterized by a sufficient degree of permeances and suitable structure in terms of human and technical resources to supply of services, or to receive and use services for its own needs. An internet POP typically houses servers, routers, network switches, multiplexers and other network interface equipment. It may not require permanent human resources on site and are maintained electronically. Therefore,
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11) of Integrated Goods and Services Tax Act, 2017 (hereinafter referred to as the IGST Act'). The same is reproduced below:
Section 12(11) of Integrated Tax Act, 2017
(a) in case of services by way of fixed telecommunication line, leased circuits, internet leased circuit, cable or dish antenna, be the location where the telecommunication line, leased circuit or cable connection or dish antenna is installed for receipt of services;
(b) in case of mobile connection for telecommunication and internet services provided on post-paid basis, be the location of billing address of the recipient of services on the record of the supplier of services;
(c) in cases where mobile connection for telecommunication, internet service and direct to home television services are provided on pre-payment basis through a voucher or any other means,
(i) through a selling agent or a re-seller or a distributor of subscriber identity module card or re-charge voucher, be the address of the selling agent
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charged for supply of services relating to such circuit, the place of supply of such services shall be taken as being in each of the respective States or Union territories in proportion to the value for services separately collected or determined in terms of the contract or agreement entered into in this regard or, in the absence of such contract or agreement, on such other basis as may be prescribed
3.3.2 Section 12 (11) of IGST Act as referred above determines the place of supply in case of Telecommunication services. In order to confirm which provision of the aforementioned Section shall be applicable in the case of the Applicant, it would be necessary to make reference to each of the Clause referred above. Clause (a) of the said section helps to determine the place of supply in case of fixed telecommunication line, leased circuits, internet leased circuit, cable or dish antenha. Clause (b) provides for place of supply in case of mobile connection services for telecommunication and
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ed as inter-state supply, if it is in the same State then it will be considered as intra-state supply.
Scenario 1: Applicant's location is Mumbai (Maharashtra), address on records of recipient is say Pune (Maharashtra), Central Tax and State Tax of Maharashtra shall be charged on such supply.
Scenario 2: Applicant's location is Mumbai (Maharashtra), address on records of recipient is say Delhi (Delhi), Integrated Tax on such supply shall be charged.
3.3.5 Having made the submissions relating to the place of supply for the outward supplies, it shall also be relevant at this stage to discuss the place of supply provisions for inward supplies. This is in light of the fact that ITC can be availed only in respect of the Central Tax and State Tax charged to the Applicant, where the place of supply is in the State where the Applicant is registered. With regard to the input services and the corresponding input tax credits which are the subject matter of the application, the Applican
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services relating to circuit and there is no agreement or contract to determine the value of services, the place of supply shall be on such other basis as may be prescribed.
3.3.5.3 In cases where Applicant enters into a consolidated contract with the leased circuit provider located across India and it is not feasible for the Applicant to determine the value of service provided in a particular state in such case the place of supply would be determined in terms of Section 12(11) (d) of IGST Act. Further a reference can be made to the case of Suresh Kumar Bansal Versus Union of India (2016 (43) S.T. R. 3 (Del.)) = 2016 (6) TMI 192 – DELHI HIGH COURT wherein was held that if there is no mechanism to ascertain the value of a particular service, service tax cannot not be levied on the same. The principle which can be derived from this case is that if there is no procedure prescribed under a statue, the same would be considered as outside the levy of that particular statute. Hence, in case
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rdance with the provisions of Section 22 of CGST Act. It raises invoices to the customer from the State where it has been incorporated i.e. Mumbai (Maharashtra) which would be considered as location of supplier as discussed in above Para. Further on the basis of the address on records of the recipient (customer) which is the place of supply as determined above, the Applicant charges Central Tax and State Tax or Integrated Tax.
3.4.2 The leased circuits to provide the last mile connectivity service are not owned by the Applicant. Applicant provides connectivity service through the bandwidth it has taken on the leased line operated by other internet service operators. Applicant avails leased circuit facility from third party local vendors to connect its POP to the CPF installed at customer's premises. Place of supply in case of leased circuits is the place where leased circuits are installed and in case of a composite contract place of supply would be determined on such other basis
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ed person. The implication of said provision can be understood with the help of below Scenario (3):
Scenario 3: Applicant is located in Maharashtra and the customer is also located in Maharashtra therefore the applicant will charge CGST and SGST of Maharashtra. While the vendor providing leased circuit service is based in Haryana. In case the vendor determines place of supply in terms of Explanation to Section 12(11)(d), he may charge IGST (i.e. location of registered person which in the current scenario would be Maharashtra). Hence, the ITC of tax charged by vendor can be availed and utilized by Applicant.
Legend:
Last Mile – Service has been subscribed from Airtel/Tata to extend the physical connectivity from Service Provider POP to Customer Premises
Router – Router is a networking device that forwards data packets between computer networks. A router is connected to two or more data lines from different networks and extended to customer LAN for using internet. Cisco & Juniper are
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wishes to seek an advance ruling for determination of liability to pay tax on receipt of services. Subsequently, Applicant also wish to seek an advance ruling in relation to admissibility of input tax credit of tax paid or deemed to have been paid.
3. In light of the above, Applicant would like to submit that the question (e) as envisaged under Section 97(2) of CGST Act may also cover the situation where the recipient of may wish to seek an advance ruling in order to determine the tax liability on the goods or services received. Further, in the said question it is not specifically mentioned whether the advance ruling in relation to determination of tax liability on goods or services can be sought only by the applicant being service provider. Hence, giving a restrictive meaning to this question or limiting the scope only to the service provider shall be ultra vires the provisions of law and the same may not be the intent of the legislature drafting the law.
4. In this regard, Applican
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islation or the intention of the legislature, when the language of the provision is plain. The court cannot rewrite the legislation for the reason that it had no power to legislate. The court cannot add words to a statute or read words into it which are not there. The court cannot, on an assumption that there is a defect or an omission in the words used by the legislature, correct or make up assumed deficiency, when the words are clear and unambiguous. Courts have to decide what the law is and not what it should be. The courts adopt a construction which will carry out the obvious intention of the legislature but cannot set at naught legislative judgment because such course would be subversive of constitutional harmony”
5. Further, in case of B. Premanand v. Mohan Koikal (2011) 4 SCC 266 = 2011 (3) TMI 1590 – SUPREME COURT the Supreme Court observed that while interpreting a statute the basic principle of literal rule of interpretation has to be followed. The relevant extract of the de
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duty and obligation of the court to interpret the statute as it is. It is contrary to all rules of construction to read words into a statute which the legislature in its wisdom has deliberately not incorporated.”
7. Applicant wish to also refer to the judgement of the Allahabad High Court in Mayfair Leather Exports (Pvt.) Ltd. vs Union of India 2011 (272) E.L.T. 193 (All.) = 2011 (5) TMI 718 – ALLAHABAD HIGH COURT wherein it was held that:
“20. The provision of an Act is to be read in the manner as it exists in the statute book and it a well settled principle in law that the court cannot read anything Into a statutory provision which is plain and uniarnbiguous. The language employed in a statute is determinative factor of legislative intent. If the language of the enactment is clear and unambiguous, it would not be proper for the courts to add any words thereto and evolve some legislative intent, not found in the statute. The court cannot add words to a statute, or change its langua
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uthorities is accepted, it would be a case of adding or deleting something from the provision, which is not permissible.
Position under erstwhile regime:
10. Under service tax regime, an application for advance ruling can only made by certain specified applicants as defined under Section 96A(b) of the Finance Act, 1994. Further, the application for advance ruling can be made in relation to following questions:
(a) classification of any service as a taxable service under Chapter V;
(b) the valuation of taxable services for charging service tax;
(c) the principles to be adopted for the purposes of determination of value of the taxable service under the provisions of Chapter V;
(d) applicability of notifications issued under Chapter V;
(e) admissibility of credit of duty or tax in terms of the rules made in this regard;
(f) determination of the liability to pay service tax on a taxable service under the provisions of Chapter V.
11. The questions on which advance ruling can
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e of Madhya Pradesh Poorv Kshetra Vidyut Vitran Company Ltd (2018 TIOL-234-AAR-GST) = 2018 (11) TMI 57 – AUTHORITY FOR ADVANCE RULING, MADHYA PRADESH, the applicant has sought a ruling to know whether the benefit of concessional rate under a specified Notification would be applicable and determination of liability to pay tax on the work contract service received by it.
(b) Rajasthan Authority for Advance ruling Goods and Services Tax in case of M/s. Chambal Fertilizers & chemicals ltd (2018-TIOL-161-AAR-GST) = 2018 (9) TMI 1257 – AUTHORITY FOR ADVANCE RULING, RAJASTHAN, the appellant has sought ruling on the applicability of GST on Ocean freight charges on import of raw materials or fertilizers. The Authority for Advance ruling in the said case held that the applicant is liable for payment of IGST under reverse charge on Ocean freight charges for receipt of transportation service.
(c) Maharashtra Authority for Advance Ruling in the case of Reliance infrastructure Limited (2018-TIOL-2
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icant wish to submit that an applicant being the recipient of goods or services can seek an advance ruling under question (e) of Section 97(2) of CGST Act, 2017 i.e. determination of liability to pay tax on goods or services or both.
15. Therefore, Applicant humbly request the honorable authority of advance ruling to accept our application in light of the above submissions.
Questions for which Advance ruling is sought in the present application:
1. Applicant wishes to seek advance ruling in terms of Section 97(2)(e) of Central Goods and Services Tax Act 2017, “Whether the supplier is to charge Integrated Tax on supply of leased circuit facility to the Applicant, where the leased circuit is installed in more than one State or Union territory and the contract or agreement doesn't specifically provide the proportion of service provided in each state?”
2. Applicant also wishes to seek advance ruling in terms of Section 97(2)(d) of CGST Act 2017, “If the answer to the above questio
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as prescribed i.e. the same would be the location of recipient of service.
B. In a case where the location of the service provider on pan India basis is Delhi and that of the recipient is Mumbai whether in the facts and circumstances, it would be integrated tax that would be chargeable since no rules have been prescribed pursuant to Sec 12(11)(d) as aforesaid and therefore whether it would be in order for the recipient to take credit of such Intergrade tax since the said services are used in the course or furtherance of business namely provision of last mile connectivity services to the recipient of services,
C. In respect of proposition (b) section 95(a) of MGST Act 2017, may be referred and is as follows
(a) “advance ruling” means a decision provided by the Authority or the Appellate Authority to an applicant on matters or on questions specified in sub-section (2) of section 97 or sub-section (1) of section 100, in relation to the supply of good
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pply of services, except the services specified in sub-sections (3) to (14),-
1. made to a registered person shall be the location of such person;
2. made to any person other than a registered person shall be, –
(i) the location of the recipient where the address on record exists; and
(ii) the location of the supplier of services in other cases.
(3) The place of supply of services,
1. directly in relation to an immovable property, including services provided by architects, interior decorators, surveyors, engineers and other related experts or estate agents, any service provided by: way of grant of rights to use immovable property or for carrying out or co-ordination of construction work; or
2. by way of lodging accommodation by a hotel, inn, guest house, home stay, club or campsite by whatever name called, and including a house boat or any other vessel; or
3. by way of accommodation in any immovable property for organising any marriage or reception or matters related the
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4) The place of supply of restaurant and catering services, personal grooming, fitness, beauty treatment, health service including cosmetic and plastic surgery shall be the location where the services. are actually preferred.
(5) The Place of supply of services in relation to training and performance appraisal to, –
1. a registered person, shall be the location of such person;
2. a person other than a registered person, shall be the location where the services are actually performed.
(6) The place of supply of services provided by way of admission to a cultural, artistic, sporting, scientific, educational, entertainment event or amusement park or any other place and services ancillary thereto, shall be the place where the event is actually held or where the park or such other place is located.
(7) The place of supply of services provided by way of,
1. Organisation of a cultural, artistic, sporting, scientific, educational or entertainment event including supply of services in
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ed.
(8) The place of supply of services by way of transportation of goods, including by mail or courier to,
1. a registered person, shall be the location of such person;
2. a person other than a registered person, shall be the location at which such goods are handed over for their transportation,
(9) The place of supply of passenger transportation service to –
1. a registered person, shall be the location of such person;
2. a person other than a registered person, shall be the place where the passenger embarks on the conveyance for a continuous journey:
Provided that where the right to passage is given for future use and the point of embarkation is not known at the time of issue of right to passage, the place of supply of such service shall be determined in accordance with the provisions of sub-section (2).
Explanation. For the purposes of this sub-section, the return journey shall be treated as a separate journey, even if the right to passage for onward and return journey
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ices are provided on pre-payment basis through a voucher or any other means, moms
(i) through a selling agent or a re-seller or a distributor of subscriber identity module card or re-charge voucher, be the address of the selling agent or re-seller or distributor as per the record of the supplier at the time of supply; or
(ii) by any person to the final subscriber, be the location where such prepayment is received or such vouchers are sold;
4. in other cases, be the address of the recipient as per the records of the supplier of services and where such address is not available, the place of supply shall be location of the supplier of services:
Provided that where the address of the recipient as per the records of the supplier of services is not available, the place of supply shall be location of the supplier of services:
Provided further that if such pre-paid service is availed or the recharge is made through internet banking or other electronic mode of payment, the location of the
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er of services,
(13) The place of supply of insurance services shall,
1. to a registered person, be the location of such person;
2. to a person Other than a registered person; be the location of the recipient of services on the records of the supplier of services
(14) The place of supply of advertisement services to the Central Government, a State Government, a statutory body or a local authority meant for the States or 'Union territories identified in the contractor agreement shall be taken as being in each of such States or Union territories and the value of such supplies specific to each State or Union territory shall be in proportion to the amount attributable to services provided by way of dissemination in the respective States or Union territories as may be determined in terms of the contract or agreement entered into in this regard or, in the absence of such contract or agreement, on such other basis as may be prescribed.
13. Place or supply of services where location
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e provided from a remote location by way of electronic means, the place of supply shall be the location where goods are situated at the time of supply of services:
Provided further that nothing contained in this clause shall apply in the case of services supplied in respect of goods which are temporarily imported into India for repairs and are exported after repairs without being put to any other use in India, than that which is required for such repairs;
2. Services supplied to an individual, represented either as the recipient of services or a person acting on behalf of the recipient, which require the physical presence of the recipient or the person acting on his behalf, with the supplier for the supply of services.
(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, gr
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taken as DEN each of the respective States or Union territories and the value of such supplies specific to each state or Union territory shall be in proportion to the value for services separately collected or determined in terms of the contract or agreement entered into in this regard or, in the absence of such contract or agreement, on such other basis as may be prescribed.
(8) The place of supply of the following services shall be the location of the supplier of services, namely:
1. services supplied by a banking company, or a financial institution, or a non-banking financial company, to account holders;
2. intermediary services;
3. services consisting of hiring of means of transport, including yachts but excluding aircrafts and vessels, up to a period of one month.
Explanation.-„ For the purposes of this sub-section, the expression,
1. “account” means an account bearing interest to the depositor, and includes a non-resident external account and a non-resident ordinary a
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rtation services shall be the place where the passenger embarks on the conveyance for a continuous journey
(11) The place of supply of services provided on board a conveyance during the course of a passenger transport operation, including services intended to be wholly or substantially consumed while on board, shall be the first scheduled point of departure of that conveyance for the journey.
(12) The place of supply of online information and database access or retrieval services shall location of the recipient of services.
Explanation.- For the purposes of this sub-section, person receiving such services shall be deemed be located in the taxable territory, if any two of the following non contradictory conditions are satisfied, namely:
1. the location of address presented by the recipient of services through internet is in the taxable Territory.
2. the credit card or debit card or store value card or charge card or smart card or any other card by which the recipient of services se
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R. Pattabiraman 94 (AIR 1985 SC 502 = 1985 (1) TMI 306 – SUPREME COURT OF INDIA. (observed as under:
The object of an Explanation to a statutory provision is
a) To explain the meaning and intendment of the Act itself;
b) Where there is any obscurity or vagueness in the main enactment to clarify the same make it consistent with the dominant object which it seems to sub serve;
c) to provide an additional support to the dominant object of the Act in order to mak meaningful and purposeful;
d) An Explanation cannot in any way interfere with or change the enactment or any part thereof but where some gap is left which is relevant for the purpose of the explanation in order to suppress the mischief and advance the object of the Act it can help or assist the court in interpreting the true purport and intendment of the enactment; and
e) It cannot however take away a statutory right with which any person under a statute has been clothed or set at naught the working of an Act by becoming
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iose or sterile 65.(State of T .N, V, M.K. Kandaswami, (1975) 36 STC 191 (SC) = 1975 (7) TMI 123 – SUPREME COURT OF INDIA followed in Kingsway & co. v. C.T.O., (1990) 76 STC 119 (WBTT) = 1989 (7) TMI 326 – WEST BENGAL TAXATION TRIBUNAL.
3: Section 5 of IGST Act which is charging section needs to be construed strictly –
taxing statute indisputably is to be strictly construed. See 1. Srinivasa Rao v. Govt. Of Andhra Pradesh & Another-2006(13) SCALE 27) = 2006 (11) TMI 620 – SUPREME COURT OF INDIA. It is, however, also well-settled that the machinery provisions for calculating the tax or the procedure for its calculation are to be construed by ordinary rule of construction. Whereas a liability has been imposed on a dealer by the charging section, it is well-settled that the court would construe the statute in such a manner so as to make the machinery workable:
4. In Case of M/s. Mabini Patram Private Ltd vs Union of India & others on 23 February, 2007 = 2007 (2) TMI 73 – SUPREME COURT
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alue for service cannot be determined in absence of a contract shall be on value of section 15 of CGST Act and on prorate basis as prescribed i.e. the same would be the location of recipient of service.
In respect of proposition (b) if answer to proposition (a) is affirmative then it would just and proper for recipient to take credit of GST since the said services are use in the course of furtherance of business namely provision of last mile connectivity services to the recipient of services.
04. HEARING
The case was taken up for preliminary hearing on 11.12.2018 with respect to admission or rejection of the application when Sh. Harish Bindumadhavan, Advocate along with Sh. Sagar Shah, Manager, and Sh. Aakash Sarda, C.A. appeared and made oral submissions for admission of their ARA application. They were informed that their question would have to be reframed to enable their application to be admitted which they agreed to. They have requested for 15 days time to reframe their questi
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t and the departmental authority. We find the relevant provision of Section 95, Section 97 and Section 98 of the GST Act. As per section 95, the term 'advance ruling' means a decision provided by this authority to the applicant on matters or questions specified in subsection 2 of Section 97, in relation to the supply of goods or services or both being undertaken or proposed to be undertaken by the applicant. For the sake of better understanding Section 97 is reproduced as below:
Section 97:
(1) an applicant desirous of obtaining an advance ruling under this Chapter may make an application in such form and manner and accompanied by such fee as may be prescribed, stating the question on which the advance ruling is sought.
(2) The question on which the advance ruling is sought under this Act, shall be in respect of,
(a) classification of any goods or services or both;
(b) applicability of a notification issued under the provisions of this Act;
(c) determination of time and
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acility to the Applicant, where the leased circuit is installed in more than one State or Union territory and the contract or agreement doesn't specifically provide the proportion of service provided in each state?”
2. Applicant also wishes to seek advance ruling in terms of Section 97(2)(d) of CGST Act 2017, “If the answer to the above question is affirmative, can the Applicant avail Input Tax Credit of the tax charged by the supplier of leased circuit facility?”
We find from the statement of facts pertaining to first question “Whether the supplier is to charge Integrated Tax on supply of leased circuit facility to the Applicant, where the leased circuit is installed in more than one State or Union territory and the contract or agreement dosen't specifically provide the proportion of service provided in each state?”
From the perusal of transaction as discussed above in details in their contention, it is clear that applicant is not supplier of services . He is recipient of
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