HC admits Petition seeking GST exemption to Construction Services under Govt Approved Housing Projects

1. That the Petitioner is a limited liability partnership (LLP) registered under the provisions of the Limited Liability Partnership Act, 2008 and having its registered office at A-28, Anita Colony, Bajaj Nagar, Jaipur (Rajasthan). The Petitioner is engaged in the business of construction of houses/Flats /Villas and undertaken township projects across the State of Rajasthan. The Petitioner is engaged in construction of a project with name ‘ShubGraha’ at Neemrana, (hereinafter referred as ‘Specified Services’). The said project complies with the parameters of affordable housing scheme as mentioned in Chief Minister Jan AwasYojna.

2. That the Respondent No. 1 is the Union of India which has issued the notification number 11/2017 dated 28th June 2017 pertaining to Central Goods and Services Tax (hereinafter referred as “CGST”) and notification number 8/2017 dated 28th June, 2017 pertaining to Integrated Goods and Services Tax (hereinafter referred as “IGST”). Respondent No. 2 is State of Rajasthan which has issued the notification dated 29th June 2017 for prescribing rates of State Goods and Services Tax (hereinafter referred as “SGST”)

3. That at the very outset, it is submitted that the impugned notifications created levy of _________________________ through impugned n___________________ in so far as not excluding supply of services of construction of from levy of tax are ultra vires to the provisions of section 174 of the CGST Act which provides that. Further, the impugned notifications are also in violation of the doctrine of promissory estoppel.

4. That the circumstances which forced the Petitioner to approach this Hon’ble Court are that Respondent No. 1 vide its____________________ exempted certain taxable services leviable under section 66B of the said Finance Act, 1994.

5. That as per Entry 14 of sub clause (c) of the said notification, the Petitioner is exempted to pay Service Tax on Specified Services. The reason of exempting the Specified Services was to provide benefit to economically weaker sections and low income groups and to provide them with affordable houses at least possible cost. For the sake of convenience, Entry 14 is reproduced herein:

A copy of the said Notification No. 25/2012- Service Tax dated 20th June, 2012 is annexed herewith and marked as Annexure 1.

(ca) low cost houses up to a carpet area of 60 square meters per house in a housing project approved by the competent authority under:

A copy of the said Notification No. 9/2016- Service Tax dated 1st March, 2016 is annexed herewith and marked as Annexure 2.

7. That w.e.f. 1st July, 2017 there has been a significant difference in the manner of levy of indirect taxes in the country by Central and State Government on supply of goods or services or both. That as per Section 173 of the CGST Act, chapter V of the Finance Act, creating levy of service tax has been omitted. That with effect from 1st July, 2017 CGST, SGST and IGST has been introduced in lieu of Service Tax. The respective acts also came into force with effect from 1st July 2017.

8. That as per Section 9 of Central Goods and Services Tax Act, 2017 and Rajasthan Goods and Services Tax Act, 2017, both Respondent No. 1 and Respondent No. 2are entitled to levy CGST and RGST respectively on all intra- state supplies of goods or services or both. Further, by virtue of Section 11 of the CGST Act, 2017, Central Government may exempt the goods or services of any specified description from the levy of tax with effect from date as specified in such notification.

9. That the Respondent No. 1 vide its Notification No. 11/2017- Central Tax (Rate), dated 28th June, 2017 specified the rate of CGST as 9% on two-third of the value of the intra- state services involving construction of complex building or civil structure. That the Respondent No. 1 vide its Notification No. 8/2017- Integrated Tax (Rate), dated 28th June, 2017 also levied IGST at the rate of 18% on two-third of the value of inter- state services of construction of building or sale of its units thereof. Lastly, Respondent No. 2 vide its Notification dated 29th June, 2017 also levied the SGST at the rate of 9% on two-third of the value intra- state services of construction of building or sale of its units thereof. All the 3 Notifications are collectively referred hereinafter as “Impugned Notifications”. A copy of the said Notifications dated 28th June, 2017 and Notification dated 29th June, 2017 is annexed herewith and marked as Annexure 3 Colly.

10. That it is evident from the aforesaid notifications that the same provides for levy of tax on entire construction services without excluding from its ambit the construction services under Housing for All (Urban) Mission/Pradhan MantriAwasYojana or housing scheme of a State Government and further the exemption notification from CGST dated____________ issued in exercise of powers u/s 11 (1) of the CGST Act also doesn’t provide for any exemption from levy of tax in this regard.

11. That it appears that with the repeal of Finance Act, 1994 (Service Tax Law) the privilege of exemption from tax conferred by the Notification dated 20th June, 2012 in relation to construction services under Housing for All (Urban) Mission/Pradhan MantriAwasYojana or housing scheme of a State Government has been omitted/revoked. As a result thereof under the Impugned Notifications, Petitioner has been made liable to pay CGST (9%) along with SGST (9%) on two-third value of intra-  state supply of Specified Services which is unjust, arbitrary and unreasonable. Moreover, Petitioner is also liable to pay 18% IGST on two-third value of the supply of specified services in the event of inter- state supply of services which is also arbitrary in nature. Such notifications are thus arbitrary being contrary to the assurance provided for exemption of tax by Respondent No. 1 under the Notification dated 20th June, 2012.

12. That it is pertinent to mention here that in the budget speech of the financial year 2012 – 2013, the then Finance Minister Mr. Pranab Mukherjee promised for exemption of tax, on construction services relating to residential dwelling , low cost mass housing up to an area of 60 sq. Mtr. Under the Scheme of Affordable Housing in Partnership. A copy of the relevant Extracts of Budget Speech (2012-2013) of the then Finance Minister is annexed herewith and marked as Annexure 4. Further, in the budget speech of the financial year 2016 – 2017, the then Finance Minister Mr. Arun Jaitely proposed for exemption of Service Tax on construction of affordable houses up to 60 square meter. A copy of the relevant Extracts of Budget Speech (2016-2017) of the then Finance Minister is annexed herewith and marked as Annexure 5.

13. That even the then Urban Development Minister Mr. M Venkaiah Naidu while addressing to realtors body CREDAI, felt the need for exemption of tax under GST regime. Furthermore, Press release of CREDAI dated 6th March, 2017 also stated that Urban Development Ministry has promised that GST will not increase the prices, especially not for affordable housing and the issue had already been escalated to the Ministry of Finance. A copy of Extract of press release of assurance given by Mr. Venakaiah Naidu and Press release of CREDAI is annexed and marked herewith as Annexure 6Colly.

14. That it is imperative to put forth that Petitioner had already invested Rs. 6.24 Cr.(approx) based on the assurance of the Respondent No.1 vide its Notification dated 20th June, 2012. Further, Petitioner had already got 58 % bookings of its units in the project and allotment subsequently has been made by
the Petitioner. Petitioner had acted in line with the assurance made by the Respondent No. 1 in the Notification dated 20th June 2012 and acted in furtherance of the same for the construction of township projects.

15. That the purported implementation of the Impugned Notifications will increase the financial burden on the Petitioner and will adversely impact the already meager margins of the Petitioner in the project.

16. That the impugned notifications besides being violative of doctrine of promissory estoppel are also ultravires to section ____ of the __________ which provides that _________________ .

17. That the Petitioner has no other equally efficacious alternative remedy in the matter except to approach this Hon’ble Court under Article 226 of the Constitution of India by filing the present writ petition.

18. That the Petitioner has not filed any such other writ petition previously in this matter either before this Hon’ble Court or before the Hon’ble Supreme Court of India.

19. Because the humble Petitioner company craves leave to add or alter or amend any of the aforesaid ground or grounds, if necessary.

20. That the Petitioner on basis of the aforesaid facts and circumstances submits that it has no other alternative efficacious remedy except to approach this Hon’ble High Court by way of the present writ petition under Article 226 of the Constitution of India for seeking quashing of the Impugned Notifications to the extent of levying CGST and SGST or IGST on specified services on the following among-st other grounds set out herein below without prejudice to each other:

A. Because on the basis of principles of equity, justice and fairness and also as per the rule of promissory estoppel, levy of CGST, SGST and IGST on the services supplied under Affordable Housing Scheme is ex-facie arbitrary, whimsical and legally unsustainable.

B. Because the rationale behind exempting the Specified Services in 2012 was to provide benefit to the economically weaker sections and the low income groups and to provide them with affordable houses at minimum cost.

C. Because the Impugned Notification to the extent of levying taxes on specified services/not excluding levy of taxes on specified services is ultravires to the provision of the relevant Acts in as much as Section 174(2)(c) of the CGST Act, 2017 and SGST Act, 2017 respectively under repeal and saving clause, specifically saves the effect of any right, privilege acquired or accrued under the repealed Acts which in the present case is Chapter V of the Finance Act read with Notification Number 25/2012 wherein specifically the specified services were directed to be exempted from the levy of Service Tax.

D. Because the services_______________________________ have already acquired the privilege under chapter V of the Finance Act read with notification number 25/2012 from levy of service tax which privilege has been specifically saved and therefore the same cannot be revoked/nullified by way of a notification.

E. Because the Respondents are State within the meaning of Article 12 of the Constitution of India and are required to act in a just, fair and reasonable manner. Every action on the part of the Respondents must be just and reasonable failing which it is liable to be treated as being contrary to the mandate of Article 14 of the Constitution.

F. Because Hon’ble Ministers had promised in the past for exemption of Service Tax/GST on the services offered under Affordable Housing Scheme in furtherance of which Petitioner had acted and made the investments and have propagated/advertised the same to the buyers as well.

G. Because the Impugned Notification issued by the Respondents are highly arbitrary, discriminative and irrational.

H. Because Article 265 of the Constitution of India states that no tax shall be levied or collected except by authority of law.

I. Because the Impugned Notification is devoid of any public interest, let alone any overwhelming public interest justifying levy of CGST, IGST or SGST.

J. Because the Petitioner herein have set up their projects at a huge investment of approximately Rs. 6.24Cr. by borrowing funds and availing of finance facilities through Banks and Financial Institutions. They are yet to recover the cost of setting up the projects and if at this stage the Respondents burden the Petitioner with unaccounted / unreasonable CGST, SGST and IGST, it would not be economic viable for Petitioner to continue its Business.

K. Because it is a settled position of law that a person who has promised/represented to another and another person acted on the said representation is required to be bound by the said Representation.

L. Because the Petitioner will suffer huge loss inasmuch as the Petitioner would be compelled to pay the purported Tax.

M. Because the Petitioner has a strong prima-facie case on merits as the Respondents have arbitrarily, wrongfully and capriciously issued the Notifications to the extent not granting the exemption of CGST, IGST and SGST to the services under which Petitioner falls.

N. Because other grounds that may be raised during the course of hearing.

PRAYER

It is, therefore, very humbly prayed that this Hon’ble Court may kindly be pleased to: –

(a) Issue appropriate writ, order or direction to the effect declaring the impugned Notifications dated 28th June, 2017, Notification dated 29th June, 2017 and ______________________ as ultra- vires to the provisions of Act and also violative of doctrine of promissory estoppel in so far as it provides for blanket levy of CGST, IGST and SGST on all kind of supply of services of construction, erection, commissioning or installation of original works without excluding from its ambit supply of such kind of services in case of low costs houses in a housing project approved by competent authority under “Affordable Housing in Partnership” component of the Housing for All (Urban) Mission/ Chief Minister Jan AwasYojna and any housing scheme of a State Government.

(b) Issue writ in the nature of certiorari or any other appropriate writ, order or direction to the effect quashing Notifications dated 28th June, 2017 and Notification dated 29th June, 2017 to the extent it levies CGST, IGST and SGST on supply of services of construction, erection, commissioning or installation of original works of low costs houses in a housing project approved by competent authority under:

a. “Affordable Housing in Partnership” component of the Housing for All (Urban) Mission/Chief Minister Jan AwasYojna.

b. Any housing scheme of a State Government.

(c) Allow the present petition with costs.

(d) Allow such further and other reliefs as the nature and circumstances of the Petitioner case may require.

HUMBLE PETITIONER

Through Counsels

[Shri Sanjay Jhanwar /Prakul Khurana /Atul Saxena/ Samay Maheshwari/ AbhinavMathur/ Ankit Sareen/ Rajat Sharma/ Shubham Goyal]Advocates

Notes:

1. Petitioner has not filed such similar writ petition before this Hon’ble Court or before Hon’ble Supreme Court of India.

2. Notices, Extra Copies etc. shall be filed in accordance with rules after its admission.

3. This writ petition, affidavit etc have not been typed by any staff member of this Hon’ble Court.

4. Since pie papers are not readily available, it has been got typed on stout papers.

Counsel for Petitioner

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

JAIPUR BENCH, JAIPUR

D.B. CIVIL WRIT PETITION NO. ________/2017

REVERENCE INFRASTRUCTURE(INDIA)LLP

…Petitioner

VERSUS

UNION OF INDIA AND ANOTHER

…Respondents

AFFIDAVIT IN SUPPORT OF WRIT PETITION

I,Deepak Gupta S/o Ramavtar Gupta, Aged about 34 years, resident of, Plot No. 11,R S Shyam Nagar, Benad Road,Jaipur – 302012do hereby take oath and state as under:

[1] That I am the authorized signatory of the Petitioner and I am therefore well conversant with the facts and circumstances of the present case and competent to swear this affidavit.

[2] That the factual contents of writ petition are true and correct to my personal knowledge and the legal averments made therein are believed by me to be true and correct on the basis of legal advice tendered to me by my Counsel.

DEPONENT

VERIFICATION

I, the above named deponent, do hereby verify that the contents of Paras No. 1 to 2 of my above affidavit are true and correct. Nothing material has been concealed therein and no part of it is false. So help me God.

DEPONENT

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

JAIPUR BENCH, JAIPUR

D.B CIVIL WRIT PETITION NO. ________/2017

REVERENCE INFRASTRUCTURE(INDIA)LLP

…Petitioner

VERSUS

UNION OF INDIA AND ANOTHER

…Respondents

AFFIDAVIT IN SUPPORT OF DOCUMENTS

I, Deepak Gupta S/o Ramavtar Gupta, Aged about 34 years, resident of, Plot No. 11,R S Shyam Nagar, Benad Road,Jaipur – 302012 302017 do hereby take oath and state as under:

[1] That I am the authorized signatory of the Petitioner and I am therefore well conversant with the facts and circumstances of the present case and competent to swear this affidavit.

[2] That the Annexures 1 to6 are downloaded from Internet.

DEPONENT

VERIFICATION

I, the above named deponent, do hereby verify that the contents of Paras No. 1 to 2 of my above affidavit are true and correct. Nothing material has been concealed therein and no part of it is false. So help me God.

DEPONENT

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