The present update intends to discuss the Advance Ruling given in the case of M/s T & D Electricals. The question placed before the Advance Ruling was the requirement of separate registration for executing works contract in another State and leviability of tax-whether CGST/SGST or IGST if separate registration is not taken in Karnataka and goods are purchased from dealer in Rajasthan for delivery at Karnataka along with admissibility of input tax credit on such goods. The Authority for Advance Ruling denied to given any decision on the questions raised before it by merely stating that the question involves GST registration in Karnataka which is beyond the purview of this authority. In this respect, the issue that needs to be examined is whether Rajasthan AAR cannot decide on liability to get registration under GST in another State? It is common that an assessee registered under Rajasthan would approach AAR of Rajasthan for any clarification or decision on any issue. We hereby make an attempt to discuss this issue with respect to provisions contained in CGST Act, 2017.
According to the provision contained in section 97 (2) of the CGST Act, 2017, the question on which the advance ruling is sought under this Act, shall be in respect of specified issues as detailed below-
(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 value of supply of goods or services or both;
(d) admissibility of input tax credit of tax paid or deemed to have been paid;
(e) determination of the liability to pay tax on any goods or services or both;
(f) whether applicant is required to be registered;
(g) whether any particular thing done by the applicant with respect to any goods
or services or both amounts to or results in a supply of goods or services or both,
within the meaning of that term.
As can be observed, the clause (f) of section 97(2) of the CGST Act, 2017, applicant can file application before the AAR to determine whether there is requirement to get registered or not. Now, the question arises is whether the application is to be necessarily filed before the AAR of the State in which registration is to be taken? Normally, it is presumed that CGST Act, 2017 is Central Tax which is applicable throughout India but practically it is not so. Although CGST Act is a Central Tax but since the State Tax varies with the State, CGST Act is also State specific and this is the reason why cross utilisation of CGST credit is not permissible. However, if an assessee is registered in Rajasthan then the Advance Ruling set up in that State will have jurisdiction to decide cases with respect to liability to get registration which is a broad question and is irrespective of the fact that decision pertains to liability to get registration in other State. Therefore, in our opinion, the decision of the above advance ruling requires reconsideration.
In support of our contention, we wish to discuss the other issues covered by the section 97(2) which are of wide amplitude such as determination of liability to pay tax on any goods or services. For example, if assessee registered in Rajasthan is providing inter state supply of goods/services and wants to determine its tax liability, which is infact covered by IGST Act, 2017, then in that case, whether Rajasthan AAR can refuse to take decision and say that they are liable to determine tax liability of only intra state transactions? Such a view appears to be faulty and not at all logical.
In this context, reference may also be made to decision given by the Maharashtra AAR in the case of GANDHAR OIL REFINERY (INDIA) LTD. [2019 (26) G.S.T.L.531 (A.A.R.-GST)] wherein it was held that importer registered in Mumbai is not required to take separate registrations in various ports located in different States and can supply imported goods directly from port to the receiver of goods. The above decision is clearly supporting our view and is clearly contradicting the view of Rajasthan AAR.
Before parting, it is pertinent to mention that recently Hon’ble Kerala High Court in the case of SUTERHLAND MORTGAGE SERVICES INC. VERSUS THE PRINCIPAL COMMISSIONER wherein it was held that the act of AAR denying to comment on whether transaction is export of service on the grounds that AAR is not empowered to comment on place of supply provisions is wrong because the transaction would be covered under broader clause (e) of section 97(2) of CGST Act, 2017 pertaining to determination of tax liability. Similarly, it submitted that the Hon’ble Rajasthan AAR should have pronounced the ruling on merits irrespective of the fact that the liability to registration pertained to another State, being Karnataka.
This is solely for educational purpose.
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