APPLICATION NOT MAINTAINABLE IF QUESTION RAISED IS ALREADY PENDING OR DECIDED: AAAR

APPLICATION NOT MAINTAINABLE IF QUESTION RAISED IS ALREADY PENDING OR DECIDED: AAAR

MADHYA PRADESH APPELLATE AUTHORITY FOR ADVANCE RULING

GOODS AND SERVICES TAX

 Case Name: Saisanket Enterprises (GST AAAR Madhya Pradesh)

 Advance Ruling No. MP/AAAR/05/2021

 Date of Judgement/Order: 26th July 2021

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Question raised in application already pending or decided- AAR rejects application

(Under section 101 of the Central Goods and Services Tax Act, 2017 and the Madhya Pradesh Goods and Services Tax Act, 2017)

1. At the outset, we would like to make it clear that the provisions of both the CGST Act and the MPGST Act are mirror image of each other except for certain specific provisions. Therefore, unless a specific mention is made to such dissimilar provisions, a reference to the CGST Act would mean a reference to the similar provisions under the MPGST Act and vice-versa. At places we may refer it. as GST Act.
2. The present appeal has been filed under section 100 of the Central Goods and Service Tax Act, 2017 and the Madhya Pradesh Goods and Services Tax Act, 2017 [hereinafter also referred to as “the CGST Act and MPGST Act”] by M/s Saisanket Enterprise (hereinafter also referred to as the “appellant”) against the order of Authority for Advance Ruling No.20/2020 dated 10.12.2020.

DISCUSSION AND FINDINGS

We have carefully gone through the submissions made by the appellant in his appeal as well as the submission made at the time of personal hearing.

1. The appellant has contended that mere issue of such letter to them by DGGSTI authorities cannot he said to he any proceedings within the meaning of proviso to Section 98(2) of CGST Act, 2017. On going through the records available before us, we find that the Additional Assistant Director, DGGI, Regional Unit, Indore has issued summon dated 10/09/2020 under section 70 of the Central Goods and Services Tax Act, 2017 to the appellant and in the said summon, it is clearly mentioned that the said officer of DGGSTI is making an inquiry in connection with evasion of GST under the Central Goods and Services Tax Act, 2017. Here we will look into Section 70 of the CGST, Act, 2017 which is reproduced below:

Section 70. Power to summon persons to give ,evidence and produce documents.- 

1. The proper officer under this Act shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry in the same manner, as provided in the case of a Civil Court under the provisions of the Code of Civil Procedure, 1908 (5 of 1908).
2. Every such inquiry referred to in sub-section (1) shall be deemed to be a –“judicial proceedings” within the meaning of section 193 and section 228 of the Indian Penal Code (45 of 1860).

We find that sub-section (2) of Section 70 is very clear that every such inquiry shall be deemed to be a –“judicial proceedings” within the meaning of section 193 and section 228 of the Indian Penal Code. Therefore, we do not agree with the appellant’s contention that mere issue of such letter to them by DGGSTI authorities cannot be said to be any proceedings within the meaning of proviso to Section 98(2) of CGST Act, 2017.

The Deputy Director, Directorate General of GST Intelligence, Regional Unit, Indore vide letter dated 02.09.2021, informed that they have initiated proceedings of determination of short payment/non-payment of GST against the appellant on the issue of wrong availment of benefit of certain provisions of notification wherein lower rate of GST 12% is prescribed for works contract services pertaining to irrigation work when provided to Government, Governmental authority and local authority for the period July 2017 to January 2018. That the appellant provided the aforementioned services to M/s Navayuga Engineering Company Limited as a sub-contractor for which the applicable rate of GST is 18% in terms of of Notification No.11/2017-Central Tax (Rate) dated 28.06.2017 as amended.

For sub-contractors, subsequently the rate of tax for such services got reduced to 12% vide Notification No.1/2018- Central Tax (Rate) dated 25.01.2018. It was also informed that the said investigation in the matter is undergoing. As per the submission of appellant and available records, we find that Directorate General of Goods & Services Tax Intelligence (DGGSTI), Regional Unit, Indore, has already initiated proceeding against the appellant on the same question raised by the appellant before us and the said proceeding is still pending before the DGGSTI, Indore.

Now, we will look into Section 98(2) of the CGST, Act, 2017 which is reproduced below:

(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.

We find that the first proviso to section 98(2) of CGST Act, 2017 is very clear, that the authority shall not admit the application where the question raised in the application is already pending or decided in any proceedings in case of an applicant under any of provisions of this Act. We find that Advance Ruling Authority has rightly rejected the appellant’s application as per the first proviso to section 98(2) of CGST Act, 2017 on the grounds that the question raised by the appellant before the Authority is pending with the DGGSTI and proceeding against the appellant is underway by the DGGSTI, Regional Unit, Indore.

ii). Now, we will look into Section 100(1) of the CGST, Act, 2017 which is reproduced below:

• The concerned officer, the jurisdictional officer or an applicant aggrieved by any advance ruling pronounced under sub-section (4) of section 98, may appeal to the Appellate Authority. Here we find that section 100(1) mandates that only a ruling pronounced under sub­section (4) of section 98 of CGST, Act, 2017 can be appealed before the Appellate Authority for Advance, Ruling. We find that the Advance Ruling Authority in its Order 20/2020 has rejected le application of the appellant under section 98(2) of CGST, Act, 2017, and it cannot be. said to be any advance ruling pronounced under sub-section (4) of section 98 of CGST, Act, 2017, therefore the appellants appeal fails on this count also.

iii). In view of the above, we have no hesitation in concluding that the instant appeal is not maintainable in as much as it is covered in the first proviso to section 98(2) of the CGST, Act, 2017 and not maintainable under section 100(1) of CGST, Act, 2017 as well. Accordingly, without going into the merits of the case, the appeal deserves to be rejected as it is not admissible in terms of first proviso to section 98(2) and section 100(1) of CGST, Act, 2017.

ORDER

We uphold the Order No. 20/2020 dated 10.12.2020 passed by Advance Ruling Authority and appeal filed by the appellant M/s Saisanket Enterprises stands dismissed on all accounts.