2024(02)LCX0497(AAR)

SJVN Limited

decided on 01-02-2024

BEFORE THE AUTHORITY FOR ADVANCE RULINGS FOR THE STATE
OF UTTARAKHAND
(Goods and Services Tax)
Present:

Shri Anurag Mishra (Member)

Shri Vivekanand Maurya (Member)

The 01st Day of February 2024

Ruling No: 04/2023-24
in
Application No: 04/ 2023-24

Note: An appeal against this ruling lies before the appellate authority for advance ruling under Section 100(1) of the Uttarakhand Goods and Services Tax Act, 2O17, constituted under Section 99 of the Uttarakhand Goods and Services Tax Act, 2017, within a period of 3O days from the date of service of this order.

AUTHORITY FOR ADVANCE RULING
GOODS & SERVICE TAX
UTTARAKHAND

PROCEEDINGS

1. This is an application under Sub-Section (1) of Section 97 of the Central Goods & Service Tax Act, 2017 and Uttarakhand State Goods & Service Tax Act, 2017 (hereinafter referred to as CGST/ SGST Act) and the rules made there under filed by M/s SJVN Limited, Naitwar Mori HEP, Bainol, Tehsil Mori, Uttarkashi, Uttarakhand-249128, (herein after referred to as the “applicant”) registered with GSTIN- 05AAICS1307F1ZS under the CGST Act, 2017 read with the provisions of the UGGST Act, 2017 (hereinafter referred to as the applicant’).

2. In the application dated 11.11.2023 the applicant submitted that:

1) That SJVN Limited (the applicant) is a Mini Ratna, Category I and Schedule A CPSE under administrative control of Ministry of Power, Govt. of India and is a registered GST Tax Payer in State of Uttarakhand with GST 05AAICS1307F1ZS is currently engaged in construction of Hydro Electric Project namely Naitwar Mori Hydro Electric Project in the District of Uttarkashi and for the said work mining lease was granted to the applicant i.e. SJVN Limited from Government of Uttarakhand for quarrying River Bed Material for construction of Project and Uttarakhand Government charges royalty from the applicant i.e. SJVN Limited for the same.

2) That the District Magistrate Uttarkashi has accordingly allotted the mining rights to the applicant i.e. SJVN Limited and the Mining Portal is also operating on the GST Number of SJVN Limited.

3) That the Mining lease order issued by the DM Uttarkashi clearly states that the applicant i.e. SJVN Limited is accountable towards Uttarakhand Government for the proper use of mining material and to submit relevant mining records to the state government.

4) That for the purpose of Construction of the above mentioned work the applicant engaged a contractor namely Jai Prakash Associates Limited and that the contract awarded to M/s Jai Prakash Associates Limited included all the costs and taxes but if the applicant i.e. SJVN Limited changes its contractor the mining rights will remain with the applicant e. SJVN Limited and the new contractor shall come into the foots of M/s Jay Prakash Associates Limited.

5) That since the applicant e. SJVN Limited is a power generating company, which is exempt from GST, hence as a policy matter no ITC is being claimed by the applicant i.e. SJVN Limited on any of its inputs and all the Tax on outward supplies is paid in cash.

6) That on 19/04/2022 a Notice was issued by Assistant Commissioner, Sector-6 SGST Department on the basis of information received by their Head Office directing the applicant i.e. SJVN Limited to pay GST RCM on royalty u/s 9(3) on mining rights allotted to it and in compliances of the said notice the applicant deposited the GST RCM on royalty on the same.

7) That on depositing the GST under RCM on the Royalty as per the above notice, the applicant was informed by their contractor e. M/s Jai Prakash Associates limited that the contractor is already depositing the GST RCM royalty by itself and SJVN Limited need not to deposit RCM on royalty and in support of this claim the contractor i.e. M/s Jai Prakash Associates limited submitted a certificate dated 29/03/2023 issued by the Assistant Commissioner, State Tax, Sector-9 Dehradun showing RCM tax deposited for different years by the contractor i.e. M/s Jai Prakash Associates limited.

8) That the Royalty on mining lease is being deposited by the contractor i.e. M/s Jai Prakash Associates limited through various Challans issued in the name of the applicant.

2.1 In view of the above facts the applicant has sought advance ruling on the following question:

That who is primarily liable to pay GST RCM tax on royalty payments SJVN Limited (the applicant) or Jai Prakash Associates Limited (the Contractor)?

3. At the outset, we would like to state that the provisions of both the CGST Act and the SGST 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 mean a reference to the same provisions under the SGST Act.

4. The Advance Ruling under GST 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 goods or services or both being undertaken or proposed to be undertaken by the applicant.

5. As per the said sub-section (2) of Section 97 of the Act advance ruling can be sought by an applicant 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 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 the 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.

6. Accordingly opportunity of personal hearing was granted to the applicant on 01.2024. Sh. Saurabh Angra, Chartered Accountant, on behalf of the applicant appeared for personal hearing on the said date and re-iterated the submission already made in their application. Mrs. Maneesha Saini, Deputy Commissioner, SGST­ Dehradun, Concerned Officer from the State was also present during the hearing proceedings. During the proceedings of personal hearing, on 10.01.2024, the Deputy Commissioner, SGST-Dehradun i.e. the Concerned Officer, brought to the notice of the Authority that the applicant in their application dated 11.11.2023 had mentioned that on 19.04.2022, a Notice was issued to them by the Assistant Commissioner, Sector-6, SGST Department, to pay and deposit GST on RCM basis on the amount of Royalty paid.

7. We find that while filing the application “Form for Advance Ruling” dated 11.2023, the applicant has declared that the question raised in the application is not 1) already pending in any proceedings in the applicant’s case under any of the provisions of the Act, and 2) already decided in any proceedings in the applicant’s case under any of the provisions of the Act.

7.2 We find that in the present application the applicant has sought advance ruling on the subject matter of “That who is primarily liable to pay GST RCM tax on royalty payments SJVN Limited (the applicant) or Jai Prakash Associates Limited (the Contractor)?” and has tick marked both the categories of the GST ARA -01 “Application Form for Advance Ruling”, therefore, in tee_ ins of section 97 of the Act, firstly we have to examine the legality and admissibility of the application filed by the applicant, for seeking advance ruling.

8. We find that the applicant i.e. M/s SJVN Limited, registered with GSTIN­05AAICS1307F1ZS was served with three DRC-01A all dated 19.02.2022 for deposit of GST on the Royalty paid under RCM basis for the financial year 2019-20, 2020-21 and 2021-22 vide letter C. No. 159, 160 and 161 all dated 19.02.2022 for royalty on mining lease.

8.2 We find that the Joint Commissioner (Audit), State Tax, Garhwal Zone, Dehradun vide his report dated 09.01.2024 informed this Authority that on the same issue i.e. payment of GST on Royalty on mining lease under RCM, Notices under Section 73 were issued against the Applicant on 26.05.2022. In the said letter it has also been mentioned that the applicant deposited the demand raised and attached the DRC-03.

9. In the backdrop of the factual position discussed above, we find that the applicant e. M/s SJVN Limited, Naitwar Mori HEP, Bainol, Tehsil Mori, Uttarkashi, Uttarakhand­249128 with GSTIN- 05AAICS1307F1Z in their present application dated 11.11.2023 has sought the advance rulings on the issue concerning a subject matter against which the Department had already issued Notice under Section 73 of the CGST Act, 2017/SGAT Act, 2017.

10. In view of the above we find that the applicant has approached the Authority on the issue which is identical and similar to the issue against which the applicant had been served Notice under Section 73 of the CGST Act, 2017/SGAT Act, 2017.

11. We have examined the issue raised in the present application and the submissions of the applicant as well. In the context of the submission by the Concerned Officer, we have examined the admissibility of the application without going into the merits of the case and find that vide application dated 11.11.2023 the applicant has approached the authority for advance ruling on an issue for which the applicant has already been served notice under Section 73 of the CGST Act, 2017/SGST Act, 2017; therefore we proceed to examine the admissibility and maintainability of the instant application before going into the merits of the application.

12. We find such situation have been covered under sub section ( 2) of the Section 98 of the Central Goods And Services Tax Act, 2017 and for better perspective the relevant portions are reproduced below:

“SECTION 98. Procedure on receipt of application. — (1) On receipt of an application, the Authority shall cause a copy thereof to be forwarded to the concerned officer and, if necessary, call upon him to furnish the relevant records : Provided that where any records have been called for by the Authority in any case, such records shall, as soon as possible, be returned to the said concerned officer.

(2) The Authority may, after examining the application and the records called for and after hearing the applicant or his authorised representative and the concerned officer or his authorised representative, by order, either admit or reject the application:

Provided that the Authority shall not admit the application where the question raised in the application is already pending or decided in any proceedings in the case of an applicant under any of the provisions of this Act:

Provided further that no application shall be rejected under this sub-section unless an opportunity of hearing has been given to the applicant:

Provided also that where the application is rejected, the reasons for such rejection shall be specified in the order.

(3) ……..

12.2 We find that as per sub section (2) of the Section 98 of the Central Goods And Services Tax Act, 2017, it is clearly specified that the Authority shall not admit the application where the question raised in the application is already pending or decided in any proceedings in the case of an applicant under any of the provisions of this Act,

13. We further find that while filing the application “Form for Advance Ruling” dated 11.2023, the applicant has not given true and correct picture in the FORM GST ARA­01 and tried to pass off the present application as a new question by declaring that the question raised in the application is not already decided in any proceedings under any of the provisions of the Act, which we observe is far from true and a false declaration.

14. We further observe that during the personal hearing the applicant’s representative was specifically asked about the receipt of Notices on the same issue, wherein he admitted that the applicant did received the notices under Section 73 of the CGST Act, 2017/SGST Act, 2017.

15. In view of the above facts, it is very clear that applicant has approached the authority, for the identical and similar issue of payment of GST under RCM on the royalty payment and hence we observe that the applicant has approached this authority, on the issue which has already been raised in applicant’s own case under the provisions of the Central Goods and Services Tax Act, 2017 and hence we hold that in terms of section 98(2) of the Central Goods And Services Tax Act, 2017, the present application is not admitted and rejected without going into the merits of the case.

AUTHORITY FOR ADVANCE RULING
GOODS & SERVICE TAX: UTTARAKHAND
OFFICE OF THE COMMISSIONER, SGST, UTTARAHAND
LADPUR RING ROAD, UPPER NATHANWALA, DEHRADUN

F. No. : 4/S.Tax-UKD/ GST/ Sec-97/2023-24/DDN/7996   Date: 01.02.2024

Copy to:

1. The chief commissioner, CGST, Meerut zone, Meerut for information please.

2. The commissioner, SGST, commissionerate, Uttarakhand for informaion please.

3. The commissioner, CGST, commissionerate, Dehradun for information please.

4. The Assistant comrnissioner, Range-I, RANGE - V CGST DEHRADUN CGST, Roorkee for information and necessary action.

5. The Assistant Comrnissioner, Zone - Dehradun, Sector - Dehradun - Sector 9, for information and necessary action.

6. The Concerned officer, CGST, Dehradun.

7. The Concerned officer, SGST, Dehradun.

8. The Appellate Authority of Advance Ruling, Uttarakhand for information please.

9. Guard File.