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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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UPDATE ON SALE OF IMMOVABLE PROPERTY UNDER GST

UPDATE ON SALE OF IMMOVABLE PROPERTY UNDER GST

UPDATE ON SALE OF IMMOVABLE PROPERTY UNDER GST
 

This note intends to discussthe definition of Goods/Services as given under the CGST Act read with Sec. 17(3) which creates ambiguity for understanding in the Sale of Immovable property after getting completion certificate.

Currently as regards definition of Goods is concerned it specifically states for movable goods, so it is understandable from the said definition that immovable property is excluded.
Sec.2(52) “goods” means every kind of movable property other than money and securities but includes actionable claim, growing crops, grass and things attached to or forming part of the land which are agreed to be severed before supply or under a contract of supply; thereby we may say that immovable goods / property is excluded from the said definition.

Further, the definition of services also specifically excludes goods from the said definition, which gives the sense that sale of immovable property will not be excluded in the definition of service mentioned under Sec. 2(102) “services” means anything other than goods, money and securities but includes activities relating to the use of money or its conversion by cash or by any other mode, from one form, currency or denomination, to another form, currency or denomination for which a separate consideration is charged.

Therefore, from the above definitions we can say that sale of Immovable property is not covered under Goods but it is not excluded from the definition of services.

At the same time, clause 5 of schedule 3 of the CGST Act, specifically states that sale of building will neither be termed as supply of goods nor supply of services. It is reproduced here for ready reference.
“Schedule III clause (5) Sale of land and, subject to clause (b) of paragraph 5 of Schedule II, sale of building.”

A combined reading of the definition of goods, services and schedule 3 results in conclusion that sale of building will neither be treated as supply of service nor supply of goods.
It is at this point of time where section 17(3) plays spoil sport by stating the following:
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
It classifies sale of building as an exempt supply thereby contradicting the combined effects of definition under section 2 and the schedule 3.

 

The very basic question that arises is that if a transaction is ousted from the definition of goods, services and supply, whether it can be subsequently classified as an exempt supply. This issue is sure to invite litigation's in the future.




The content of this GST update is for educational purpose only and not intended for solicitation.

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