AAR: One-time upfront concession fees charged for lease will not fall under S.no 41 of N. No. 12/2017 CT(R), liable to GST

Categories: Advance Ruling
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FactM/s Goa Tourism Development Corporation Ltd. (“the Applicant”) is a Government Company executed a Concession Agreement with Myrayash Hotels Pvt. Ltd (MHPL), for Renovation/Development of their Anjuna property through Private Investment Mode. MHPL was given the exclusive right, license and authority to construct, operate and maintain the project for a period of 30 years extendable by further period of 30 years totalling 60 years. The applicant has collected amount of Rs. 25,20,00,000/- from M/s Myrayash Hotels Pvt. Ltd., Mumbai in the name of onetime upfront Concession Fees for a term of 60 years @ Rs. 42,00,000/- per annum for use of their Anjuna Property through Private Investment mode on DBFOT Basis (Design Build, Finance, Operate and Transfer).

Issue Involved– The applicant is seeking an advance ruling in respect of the issue, that Whether GST is applicable on One Time Concession Fees Charged by the applicant in respect of their property at Anjuna, Goa?

Applicant’s Contention of LawThe applicant contended that the one-time upfront concession fee charged by the applicant, an undertaking of Government of Goa, for lease of 60 years granted to M/s Myrayash Hotels Pvt. Ltd, Mumbai is exempted from payment of GST under Sr. No. 41 of Notification No. 12/2017-CT (Rate) 28/06/2017 as amended by Notification no 32/217-CT (Rate) dated 13/10/2017 and further submitted that all the conditions for claiming exemption under this entry is satisfied and complied and hence eligible for exemption under entry 41.

HeldThe Hon’ble AAR of Goa vide Advance Ruling No. GOA/GAAR/4 OF 2018-19/2429 dated 21.10.2018 held that no such Notification declaring the area consisting of plot leased out by the applicant, as industrial/financial business area, is on record. Therefore, the area cannot be treated as industrial or financial business area. Therefore, the service provided by the applicant not fall under the criterion mentioned at Sr. No. 41 of the Notification No. 12/2017-Central Tax (Rate), dated 28-6-2017 as amended by the Notification No. 32/2017-Central Tax (Rate), dated 13-10-2017. Therefore, the applicant is not entitled for the benefits of the said notification and the activity of long term lease by the applicant is liable to levy of GST.

Citation: [2018] 100 taxmann.com 128 (AAR – GOA)