MADRAS HIGH COURT
W. P. NO. 13522 OF 2024 AND W. M. P. NO. 15947 OF 2024
Norton Granites & Properties (P) Ltd. …..Appellant
V/s
The Assistant Commissioner (ST), Chennai …..Respondent
Honble Justice
Senthilkumar Ramamoorthy, J.
Date : 12/06/2024
Appearance:
Mr. R. Sivakumar for the Petitioner.
Mr. T.N.C. Kaushik, AGP (T) for the Respondent.
Case Dismissed
Issues Involved :- The petitioner had entered into an agreement for development / sale with KG Foundation Private Limited. The petitioner states that KG Foundation collected GST at 18% in relation to the construction activities. On the basis that GST should have been collected at 5% and not at 18%, the present writ petition was filed. The petitioner paid GST at 18% to KG Foundation and, therefore, the application for refund is maintainable at the instance of the petitioner. The registered person under applicable GST enactments is KG Foundation and not the petitioner. Consequently, he submits that the refund application should have been filed by the registered person and not by the petitioner. He also points out that such application is required to be filed within two years as per Section 54 of applicable GST enactments. GST is imposed on construction services on forward charge basis on the provider of services. In this case, services were provided by KG Foundation and not by the petitioner. Therefore, the contention of learned Additional Government Pleader is liable to be accepted. This writ petition is not maintainable at the instance of the petitioner.
Section 54 of the CGST Act, 2017— Refund –— The petitioner challenged the rejection order dated 24.11.2022 for assessment period 2018-19. The petitioner had entered into an agreement for development / sale with KG Foundation Private Limited (KG Foundation), whereby, the property was to be developed by KG Foundation, who collected GST at 18% in relation to the construction activities. Whereas the GST should have been collected at 5% and not at 18%. The counsel for the petitioner submitted that the petitioner paid GST at 18% to KG Foundation and, therefore, the application for refund is maintainable. The court observed that GST is imposed on construction services on forward charge basis on the provider of services. Services were provided by KG Foundation and not by the petitioner. This writ petition is not maintainable.
Held that:-The Hon’ble High Court dismissed the petition.
JUDGMENT
The petitioner assails a rejection order dated 24.11.2022 for assessment period 2018-19. The petitioner had entered into an agreement for development / sale with KG Foundation Private Limited (KG Foundation). Under the said agreement, the property was to be developed by KG Foundation. In relation thereto, the petitioner states that KG Foundation collected GST at 18% in relation to the construction activities. On the basis that GST should have been collected at 5% and not at 18%, the present writ petition was filed.
2. Learned counsel for the petitioner submits that the petitioner paid GST at 18% to KG Foundation and, therefore, the application for refund is maintainable at the instance of the petitioner.
3. Mr.T.N.C.Kaushik, learned Additional Government Pleader, accepts notice for the respondent. He submits that the registered person under applicable GST enactments is KG Foundation and not the petitioner. Consequently, he submits that the refund application should have been filed by the registered person and not by the petitioner. He also points out that such application is required to be filed within two years as per Section 54 of applicable GST enactments.
4. GST is imposed on construction services on forward charge basis on the provider of services. In this case, services were provided by KG Foundation and not by the petitioner. Therefore, the contention of learned Additional Government Pleader is liable to be accepted. This writ petition is not maintainable at the instance of the petitioner.
5. For reasons aforesaid, W.P.No.13522 of 2024 is dismissed without any order as to costs. Consequently, W.M.P.No.15947 of 2024 is closed. It is needless to say that it is, however, open to the petitioner to initiate appropriate legal proceedings against KG Foundation in accordance with law.