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Subject News *  GST summons: anticipatory bail maintainable without arrest order, but relief denied in evasion case: Allahabad High Court. *  GST Appeal can’t be decided without hearing taxpayer’s objections to fresh evidence: Allahabad High Court. *  GST ITC can’t be reversed merely because supplier grants discount without reducing tax liability: GSTAT. *  Mere quoting of GST provision is not a valid charge: GSTAT quashes ITC denial. *  Personal hearing mandatory before adverse GST order, even without taxpayer’s request: Rajasthan High Court. *  Parallel bail pleas without full disclosure amount to abuse of process Rs. 43.08 crore GST case sent for fresh hearing: Supreme Court. *  GST refund based on unchallenged advance ruling can’t be recovered using later circular: GSTAT. *  Payment of GST alone doesn’t end interest and penalty liability when tax and interest remain unpaid beyond 30 days of notice: GSTAT. *  GST demand over builders’ 80% procurement rule requires reasoned adjudication: GSTAT. *  Eligible ITC doesn’t automatically entitle taxpayers to compensation cess refund on domestic sales: GSTAT. *  GST confiscation order passed before reply deadline invalid: GSTAT. *  GST interest can’t be retained after tax refund on delayed export receipts: Punjab & Haryana High Court. *  GST appeal can’t be dismissed over pre-deposit shortfall without opportunity To respond: Bombay High Court. *  DGGI SCN can’t be challenged before reply and adjudication:Chhattisgarh High Court. *  GST input tax credit can’t be denied solely due to supplier’s retrospective registration cancellation: GSTAT. *  GST notice must explain fraud allegations; merely repeating section 74 Is not enough:  Himachal Pradesh High Court. *  Audit detection alone can’t justify GST fraud penalty; specific suppression must be proved: GSTAT. *  GST order uploaded only under ‘Additional Notices’ tab without separate intimation set aside: Calcutta High Court. *  Service Tax appeal can’t be rejected for missing pre-deposit proof when payment is already recorded: CESTAT. *  SGST dept. can’t hear appeal against CGST order: Calcutta High Court. *  Mere dispatch of tax order can’t prove service or make appeal time-barred: CESTAT. *  Dealer incentives can’t be taxed merely on ledger entries: CESTAT. *  DGFT orders quashed for failure to supply DRI letter relied upon in SCN: Bombay High Court. *  GST penalty u/s 122(1A) can’t apply to Pre-2021 transactions; unregistered beneficiaries also covered: Delhi High Court. *  Expired E-way bill caused by wrong PIN code can’t justify GST penalty without intent to evade tax: GSTAT. *  Used railway rails can’t be taxed as track material without proof they are fit for reuse: CESTAT. *  Earlier DGGI notice doesn’t bar separate GST demand on different issue: Delhi High Court. *  ITC dispute involves no question of law: GSTAT directs appeal to Vice-President. *  Earlier DGGI notice doesn’t bar separate GST demand On different issue: Delhi High Court. *  No E-way bill required for interstate goods movement in november 2017: GSTAT quashes detention and penalty.  

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GST Update No 226 on tax implication on supply of food and accommodation to students

GST Update No 226 on tax implication on supply of food and accommodation to students
Although, the advent of GST has brought a paradigm shift in the sector of Indirect Taxation, the question regarding applicability of GST on education sector is a matter of grave concern for all. However, the legislation has retained the concept of “bundled services” from erstwhile GST regime, the question related to supply of food and accommodation services provided to students is a matter of discussion till date. On similar lines, one of the cases was reported before Telangana AAR in the case of M/S HEALERSARK RESOURCES PRIVATE LIMITED. The decision imparted in this case is the subject matter of our present update.
 
The applicant is engaged in the business of providing boarding and lodging to the students who are undergoing training under healthcare related vocational programs. Following question in this respect were raised before AAR:
1.     Applicability of GST SAC and GST Rate on above stated supply of service
2.     Whether it is a composite supply or mixed supply?
3.     Whether the service is exempted vide Notification No. 12/2017-CT (Rate) dated 28.06.2017.
 
The applicant submitted that they are charging Rs. 9000/- per candidate per month for lodging and boarding services provided to students who are undergoing training under vocational program out of which Rs. 3,500/- is towards rent and Rs. 5,500/- is for food on basis of head count. It was further submitted that they are eligible for exemption under Notification No. 12/2017 dated 28.06.2017 since the value of supply of accommodation is below Rs. 1,000/- per day. It was contended that Rs. 9,000/- is charged per month which amounts to Rs.300/- per day and be treated as composite supply. Further, it was argued that since the supply of food will be ancillary and accommodation is principal supply, service would be exempted being a composite supply.
 
The AAR placed reliance on the decision of Apex Court in the case of Dr. Mahesh Chandra Sharma V/s Smt. Raj Kumar Sharma- AIR 1996 SC 869, wherein concept of composite supply was explained. Further, looking onto the facts, it was held that rent is fixed at the rate of Rs. 3,500/- whereas food is charged at Rs. 5,500/- as per the head count. This demonstrates that the price is variable to the extent of food supplied. No single price is charged from the customer no matter how much of the package is actually received. Hence, the above two supplies are integral part of one another. Reference was drawn to the decision of Kerala High Court in the case of Abott Health Care Pvt. Ltd. wherein it was held that the two supplies are composite supply since they are affected on “as is where is” basis. In the present scenario the conditions are not fulfilled and hence, the supplies are distinct supply. Therefore, it was clarified that the two supplies are distinct supplies wherein supply of accommodation is exempt and on supply of food, GST is leviable.
 
It is pertinent to mention here that there are divergent rulings and views delivered on the subject matter under consideration. To illustrate, Rajasthan AAAR in the case of M/s Mody Education Foundation wherein it was held that supply of food along with hostel accommodation service is not naturally bundled and therefore, be treated as mixed supply and chargeable to highest rate of tax. Similarly, in the case of M/s Sarj Educational Centre, West Bengal AAAR upheld the same view-point, treating it as mixed supply. Although, it is well settled law in law that the advance rulings are binding only on the assessees who sought it, yet these contradictory rulings lay down a foundation for the revenue department to initiate action against the assessees. The need of the hour is that consistency is maintained while pronouncing advance rulings so that unwarranted confusion could be avoided.
 
 
 
 
 
 
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