A. PROCEEDINGS BEFORE THE COURT
1. This is an order on both the Interim Application No. 5946 of 2020 and the Review Petition (L) No 4687 of 2020.
2. The original Petition under Section 9 of the Arbitration & Conciliation Act, 1996 is in the Commercial Division of this Court. The Interim Application and the Review Petition are, consequently, also in that Division.
3. The Section 9 Petitioner is a private limited company (“Saifee Developers”). The 1st Respondent in the Section 9 Petition is a partnership firm (“Shanklesha Constructions”). Respondents Nos. 2 to 6 in the original Section 9 petition are partners of Shanklesha Constructions (There appears to be some discord between the partners of Shanklesha Constructions; specifically, between the other partners on one side and Respondents Nos. 3 and 5, Chajjed father and son, on the other. That dispute is being separately addressed and is not relevant to the present judgment).
4. Interim Application No 5946 of 2020 is by Shanklesha Constructions (and its partners). It seeks a recall or vacating of interim or ad interim reliefs granted by an order of 15th July 2019 to Saifee Developers.
5. The Review Petition is by Saifee Developers. It seeks a review of my order of 28th February 2020. Specifically, Saifee Developers asks to be relieved of a statement it made regarding payment of Goods & Service Tax (“GST”). The order of 28th February 2020 noted, recorded and accepted that statement made on instructions by counsel then engaged by Saifee Developers.
B. SUMMARY OVERVIEW
6. I have heard Mr Andhyarujina for Saifee Developers and Mr Khandeparkar for Shanklesha Constructions at length. I have considered the rival submissions, including on interpretation of Section 13 of the Central Goods and Services Tax Act 2017 (“GST Act”).
7. The sole issue is whether or not Saifee Developers is liable to pay GST on what has metamorphosed (from its earlier manifestation as a joint venture agreement) into an agreement for the sale of flats in a project being undertaken by Shanklesha Constructions. There is some discord about the number of flats this new agreement contemplates, but that is of no consequence. According to Mr Andhyarujina, on a correct interpretation of the GST Act, and particularly Section 13 of that Act, as no ‘service’ has as yet been rendered — the flats not having been delivered — in the peculiar facts of this case, Saifee Developers is not required to pay any GST at all to Shanklesha Constructions. He does not dispute that, in law, the liability to pay GST into revenue is that of Shanklesha Constructions; he does contend that Shanklesha Constructions cannot demand that GST, let alone any interest, until Saifee Developers is provided the promised flats. He submits that the correct position in law was not communicated to the Court by previous counsel for Saifee Developers. This resulted in the 28th February 2020 order, when Saifee Developers made a commitment to pay Shanklesha Constructions the GST for the flat purchase agreement (computed on the amount of consideration); and that, in turn, has yielded an error of law apparent on the face of the record warranting a review.
8. This interpretation is contested down the line by Mr Khandeparkar. He points out that on any rational and reasonable reading of the plain language of the statute, Mr Andhyarujina’s position is wholly untenable. Not only is there no error at all, but the previous order of which review is now sought fully protected Saifee Developers, reflected the correct position in law, and, moreover, recorded a solemn statement by its counsel on instructions. This is not, he says, a case where some sort of concession was made by counsel without instructions. Therefore, in his submission, the review petition must fail.
9. Axiomatically, Mr Khandeparkar submits, his Interim Application on behalf of Shanklesha Constructions must succeed. The entire thrust of that Interim Application is that Saifee Developers has obtained a protective order on 15th July 2019 but wholly failed to abide by one of its crucial requirements, viz., that Saifee Developers would pay the GST. This may even be a fraud on revenue. There is no defence to the Interim Application except the grounds taken in review; and, therefore, if the Review Petition fails — as indeed it must, in his submission — the Interim Application must be allowed. A party cannot continue to claim protection under a court’s order while not complying with the requirements of that very order.
10. On carefully considering the rival submissions and material before me, I am not at all persuaded that Mr Andhyarujina is correct in his submissions. I have dismissed the Review Petition, but I have not done so on limited grounds, such as holding him to the statement his predecessor made. Since he argued that the entire position in law was diametrically opposite to the statement earlier made (and therefore to the 28th February 2020 order), I permitted him full latitude in presenting his case on the interpretation of the relevant provisions of the GST Act. In my judgment, the view that Mr Andhyarujina canvasses on interpretation does not commend itself. It seems to me to be wholly against the plain meaning and language of the section in question, and possibly fraught with all manner of unintended consequences.
11. The dismissal of the Review Petition necessarily means, in my view, that the Interim Application must be allowed. Mr Khandeparkar is correct when he says that the only response to his Interim Application on behalf of Shanklesha Constructions is the Review Petition. I have made the Shanklesha Constructions Interim Application absolute, with one qualification.
12. My reasons follow. I begin with the two orders in question. Then there is a short summary of the facts necessary for this order. The key dates are undisputed, and the facts are not many. Next, I consider the rival submissions, including on interpretation of the relevant provisions of the GST Act. The last section has the conclusion and the operative order.
C. THE TWO ORDERS IN QUESTION
13. I begin by reproducing the operative portions of the two orders in question. Since these are orders are interconnected, I must necessarily — even at the cost of some unavoidable repetition later in this judgment — set out some intervening events and an order.
14. On 15th July 2019, Mr Tamboly appeared for Saifee Developers, the Petitioner, and Mr Khandeparkar was for Shanklesha Constructions and others, the Respondents. The order of 15th July 2019 (GS Kulkarni J) in Saifee Developers’ Arbitration Petition says this in its operative portion:
17] In these circumstances, pending the disposal of this petition, there shall be an adinterim order in the following terms:
(i) The respondents are directed to file an affidavit disclosing the unsold area which is available with the respondents in the project as also disclose on affidavit the details of all the sales of flats/tenements residential/commercial in the project, specifying as to whether the sales are under a registered agreement and the consideration received. Affidavit be filed within two weeks from today.
(ii) The respondents are directed not to create any third party rights in respect of 15 flats which the respondents intend to transfer to the petitioner, the details of which are stated in the second part of the statement at “Exhibit G” (page 122 of the paper book)
(iii) The respondents are also directed not to create third party rights in the unsold commercial area of 10,000 sq.ft. till further orders.
(iv) It would be permissible for the respondents to deposit in this Court an amount equivalent to the consideration of area of 19000 sq.ft. at the rate of Rs.3750/per sq. ft. (as agreed between the parties) alongwith the simple interest at 9% per annum, on the deposit of such amount the adinterim relief in terms of (iii) shall automatically stand vacated.
(v) Ordered accordingly.
18. Let reply affidavit be filed by the respondents before the adjourned date of hearing and a copy of the same be served on the learned advocate for the petitioner well in advance.
19. Stand over to 29.07.2019.
20. At this stage, Mr. Tamboli, learned counsel for the petitioner, on instructions, submits that his client is willing to pay GST in respect of sale of the flats in question. He further submits that as informed by the respondents, 10 flats would be available, but there are inter se disputes between the partners pending arbitral proceeding. He submits that in case the injunction as inter se between the partners is vacated, in that event the petitioner should be kept informed of the vacating of the injunction so that the petitioner can have those 10 flats. It would not be unreasonable if such request as made by Mr. Tamboli, learned counsel for the petitioner is granted. Respondent shall accordingly inform the petitioner in case the injunction is vacated. It is clarified that this direction is made so that the parties make an endeavour to resolve the disputes between the parties considering the undisputed facts on record.
21. At this stage, Mr. Tamboli would submit that in view of the objection of the respondents that the MOU is not sufficiently stamped, his clients would take immediate steps to make payment of the stamp duty within a period of two weeks from today.
15. The two statements by Saifee Developers to which Shanklesha Constructions says it must be held are (i) the commitment to pay the GST; and (ii) the payment of stamp duty under the Agreement in question.
16. Shanklesha Constructions appealed. This resulted in an appellate consent order suspending the direction of disclosure.
17. While, though with some delay, the MoU was lodged for assessment as to stamp duty, Saifee Developers did not pay any GST. Shanklesha Constructions says there were no further communications regarding stamp duty. On 27th August 2019, Saifee Developers said the stamp duty had been paid, and that the GST issue would be resolved. On 17th September 2019, Saifee Developers gave the same assurance again regarding stamp duty. Shanklesha Constructions filed Interim Application No 1 of 2019 including inter alia for a direction to Saifee Developers to pay the GST. I made an order on that on 13th December 2019, recording part payment and an undertaking to pay the rest. Shanklesha Constructions appealed. The Interim Application says the appeal (and the accompanying Interim Application in the appeal) are yet pending.
18. Meanwhile, the commercial Arbitration Petition and the tagged commercial Arbitration Application came before me on 31st January 2020. This is the relevant part of the order I made on that day:
1. There is an Arbitration Petition under Section 9 and Arbitration Application under Section 11 of the Arbitration and Conciliation Act 1996. So far as the Arbitration Application is concerned, there is an Affidavit in Reply. Mr Tamboly for the Applicant states that a Rejoinder is necessary. That Affidavit in Rejoinder is to be filed and served on or before 7th February 2020. No further Affidavits without leave of the Court.
2. List the Arbitration Application on 11th February 2020.
3. I note, however, that there are serious objections in the Section 11 Application. Not only is there a question of insufficiency of stamp duty but also a question of whether the physical document that has been relied on by the Applicant (and on which some stamp has been paid) is in fact the actual physical agreement signed by the parties. The reason for this contention is that while the 1st Respondent firm and four of its five partners do not dispute having signed the agreement in question, they say that the signed agreement did not have on its last page a tabulation or chart showing 44 flats. It is the document with that chart on which stamp has been paid by the Applicant.
4. Another objection taken is that one of the five partners, the present 4th Respondent, did not sign the Agreement at all. This objection is sought to be placed within the frame of Section 19(2) of the Indian Partnership Act 1932.
5. I have only noted these submissions so that there is no ambiguity about the questions that will have to be addressed when that Arbitration Application is taken up.
6. In the Arbitration Petition under Section 9, there are three important orders. The first is the order of GS Kulkarni J of 15th July 2019. At that time, an objection was taken even on the Section 9 Petition in regard to sufficiency of stamping. GS Kulkarni J made an order saying that the question would not arise in the Section 9 Petition. That matter was carried in appeal. The appeal was disposed of on 13th August 2019. The Appeal Court only suspended GS Kulkarni J’s directions in regard to a disclosure that he had ordered.
7. In the meantime, when the matter was before me on 13th December 2019, I considered an Interim Application filed by the Respondent represented by Mr Khandeparkar. There was a question of payment of GST and in paragraph 6 of that order I said this:
“6. So far as prayer clause (c) is concerned, this is for a direction to the original Petitioners to pay to the Respondent No. 1 represented by Mr Khandeparkar (the applicants in the IA) an amount of Rs. 2,53,85,000/- due as GST. Mr Tamboly has tendered an Affidavit dated 13th December 2019 which says that the GST due is Rs. 35,30,200/- and that this amount will be paid to the 1st Respondent before 1st January 2020. In fact he has a cheque in favour of the Respondent No. 1 to the Petition dated 31st December 2019 for this amount drawn on HDFC Bank. Mr Khandeparkar accepts this cheque on a without prejudice basis. Mr Tamboly makes a further statement, which he says may be treated as an undertaking, that whenever a GST demand is found due it will be paid to the 1st Respondent. Any claims for refund, or adjustment will be taken up separately but on no account will the 1st Respondent be exposed to a GST recovery or penalty proceeding or interest on account of delay on the part of the Petitioner. The statement is noted and accepted as an undertaking to the Court.”
8. Mr Khandeparkar tells me that there is an appeal filed against this portion of the order and there is an Interim Application in that Appeal. Both are pending and the Interim Application has been placed for final disposal. It has been partly argued.
9. Iwas at first hesitant to take up the Section 9 Petition at all as I felt that would amount to over-reaching the Appeal Court, but when both sides agreed that the only issue in the Interim Application was the question of the Petitioners’ liability to make payment to GST, and both sides agreed to attempt a mutually satisfactory arrangement immediately in regard to that issue, I permitted both Mr Tamboly and Mr Khandeparkar to place their rival submissions as both indicated that the entire question of GST liability could perhaps be satisfactorily resolved here and now. I suggested to both sides some safeguards while yet ensuring that payment is made into revenue so that the interests of neither side are compromised on account of a later demand by revenue or the imposition of interest and penalty. Both sides agreed in principle. But a final order will require both sides to make appropriate statements on Affidavit. I have broadly indicated the frame of those statements. Specifically, Mr Khandeparkar will need to provide a sufficient assurance to Mr Tamboly’s clients that GST payments, applications for refund or adjustment, etc will be openly and transparently handled and that the Petitioner will be kept apprised of all these developments. If there is any refund, Mr Tamboly’s clients must be assured of receiving a pro-rated reimbursement to the extent of that refund as well. Mr Tamboly has for his part indicated quite clearly what are the safeguards that are required because, as he puts it, his client is making payment of an amount towards tax that, according to the Petitioner, is firstly not due and secondly, under an Agreement between the Parties, was the responsibility of the Respondents represented by Mr Khandeparkar. I am not addressing the merits of this contention at all. I am only endeavouring to neutralise the question of GST so that this does not become an additional externality or destabilising factor in the disputes between the two parties which are entirely contractual and with which the revenue is in no way concerned. Mr Khandeparkar states that a resolution in this fashion — i.e. a without prejudice payment to his clients by Mr Tamboly’s clients of the amount of GST in dispute, a simultaneous payment to revenue by Mr Khandeparkar’s clients, and the foregoing mutual assurances on affidavit — will effectively resolve the dispute and he need not pursue his Appeal and Interim Application.
10. I will accordingly place the Section 9 matter for this limited purpose on 4th February 2020. Again, I emphasise that the endeavour is only to find a mutually satisfactory solution to the GST question so that the Section 9 petition can proceed. If, for any reason, parties are unable to agree on the GST aspect, then I do not think I can in fairness presently take up the Section 9 petition at all. (Emphasis added)
19. This led to the order under Review by Saifee Developers, of 28th February 2020:
1. There is an Affidavit dated 4th February 2020 of the Respondents 1, 2 and 4 to 6. The contents of their Affidavit are noted and the undertakings in that Affidavit and in particular in paragraph 3 are accepted as undertakings to the Court.
2. In view of the persistent controversy in the matter I believe it is best to incorporate the contents of the Affidavit in this order so that there is not the slightest ambiguity. The Affidavit reads thus:
“I, Manish Mutha, the Respondent No.2 abovenamed, having my office at Room No.5, 2nd floor, Maru Bhavan, 55/57 Babu Ganu Road, Mumbai 400002 do hereby solemnly affirm and state as under:
1. I say that I am filing this present Affidavit on behalf of Respondent Nos. 1,2 and 4 to 6 (herein referred to as “these Respondents”) pursuant to the assurances given by our Advocate/s at the time of the hearing of this matter on 31st January 2020 as well as the Order dated passed on the said date (hereinafter referred to as the “said Order”) by this Hon’ble Court in the captioned Arbitration Petition In order to facilitate the payment of GST on the amount of Rs. 15 crores received by Respondent No.1 from the Petitioner for purchase of immovable property.
2. I say that the Petitioner is liable to pay an aggregate sum of Rs.2,25,54,238/- (Rupees Two Crore Twenty Five Lakhs Fifty Four Thousand Two Hundred and Thirty Eight Only) as and by way of GST alongwith interest on the principal sum of Rs. 1,80,00,000/- (One Crore Eighty Lakhs Only) after deducting the amount of Rs. 35,50,200/- already paid by the Petitioner towards the outstanding amount of GST, as on 31st January 2020. The interest is computed at the rate of 18% per annum as per the circular / notification bearing number 13/2017 dated 28th June 2017 issued by Government of India, Ministry of Finance. This outstanding GST amount with the applicable interest at the relevant time has been communicated to the Petitioner on various occasions and these Respondents have also provided their Chartered Accounts certificate for the same. Hereto annexed and marked as Exhibits “A ” and “ B” are copies of the aforesaid GST circular / notification dated 28th June 2017 and Chartered Accountant’s certificate certifying that the aforesaid amount is due and payable as on 31st January 2020.
3. I say that these Respondents agree to accept the aforesaid amount of GST plus interest thereon without prejudice to the rights of the Petitioner on merits of the matter. Subject to receipt of the entire aforesaid amount of Rs.2,225,54,238/- (Rupees Two Crore Twenty Five Lakhs Fifty Thousand Two Hundred and Thirty Eight Only) or such additional amount as may be required to be paid by the Petitioner on account of further delay in payment on and after 31st January 2020, I agree and undertake:
a. To pay the entire amount of GST and interest due on thee said Rs. 15 crores as paid by the Petitioner to these Respondents to the GST authorities;
b. To provide the Petitioner with a receipt evidencing the payment of GST, towards both principal and interest, in respect of the transaction of payment of Rs. 15 crores by the Petitioner.
c. Not later than 45 days from the date of completion of the project of these Respondents known as ‘Sai Nirvana’, file an application and/or take such steps as may be necessary in accordance with law to recover and/or seek refund of GST, if any, as may become available in respect of amount of GST and / or interest paid by the Petitioner hereunder and to intimate the Petitioner of the dates, time and venue of any hearing in relation to such application;
d. To repay the Petitioner any amount received as refund towards GST/interest from the amount paid by it within 3 (three) days of receipt thereof from the GST authority.”
3. There are several issues that arise.
4. As regards the amount of Rs. 35,50,200/- paid by the Petitioners to the Respondents towards part of the GST liability and which is GST payable on the 10 flats already registered in Petitioner’s name, Mr Khandeparkar makes the following two statements:
(a) that the amount has been paid to GST already and has not been adjusted or otherwise accounted for; and
(b) that by Monday 2nd March 2020 his attorneys will forward to the attorneys for the Petitioner a copy of the relevant challan evidencing payment of this amount of Rs. 35,50,200/-.
5. The remaining controversy is about the GST payable (with accrued interest) on the amount of Rs. 15 crores paid by the Petitioners to the Respondents. It is not necessary to set out the rival contentions since Mr Tamboly now has instructions to state that the amount of GST and accrued interest on this amount will be paid on a without prejudice basis by the Petitioners to the Respondents. He seeks some time to make this payment. I will allow him 12 weeks’ time to make that payment but the interest up to the date of payment will also be included in the remittance to be made.
6. As a starting point for the computation, Exhibit “B” to the further Affidavit affirmed on 4th February 2020, a Chartered Accountant’s certificate showing the total amount due as of 31st January 2020, will serve as the basis for the calculations going forward.
7. This is subject to certain further conditions:
(a) that within 48 hours receipt of the amount, the Respondents will make payment of the entire amount to the GST authorities;
(b) that they will within 48 hours of receiving the relevant challan forward a copy to the Advocates for the Petitioners;
(c) all the conditions and undertakings in paragraph 3 of the Affidavit extracted above will immediately begin to operate.
8. In view of these statements, upon the Petitioners making payment of the balance amount of GST and accrued interest—
(a) the Respondents will register the 15 flats mentioned in paragraph 17(ii) at Exhibit “G” to the Affidavit in Reply and listed at page 122 of the paper book in favour of the Petitioners.
(b) The stamp duty is to be paid in accordance with the agreement between the parties.
(c) Upon those flats being registered and the stamp duty being paid any original documents being held by the Petitioners will be returned to the Respondents.
(d) If there is any difficulty in this regard liberty to the parties to apply either to the Court or to the arbitrator in an appropriate application under Section 17.
9. It goes without saying that all contentions including whether the GST is at all payable by the Petitioners is kept open for an appropriate claim and decision in arbitration.
10. Mr Khandeparkar states that with this statement by Mr Tamboly being accepted, the appeal that the Respondents had filed against the order dated 13th December 2019 will no longer survive. Mr Khandeparkar states that the Respondents will withdraw that appeal at the earliest, the issue having been resolved in this Court.
11. There are protective orders including principally the order of 15th July 2019. The Petitioners are aware that these orders protect them in two significant aspects. First is in regard to 15 flats that admittedly the Respondents have agreed to transfer to the Petitioner. The second is a protection of an unsold commercial area of 10,000 sq ft. The order of 15th July also allowed the Respondents to deposit an amount equivalent to the consideration for 19,000 sq feet at Rs. 3,750 per sq foot with interest at 9% per annum. On that deposit being made, the two previous protective directions were to stand vacated. No such deposit has been made and therefore those two protective orders for the 15 flats and the 10,000 sq feet continue.
12. I will have to keep the Petition pending since there is a matter of prayer clause (a). A disclosure was ordered by GS Kulkarni J but that has been kept pending by an order of Division Bench. In any case, the matter will have to be kept pending until there is some clarity on whether the GST has been paid or not, for the simple reason that a failure on the part of the Petitioners to pay the GST may have other consequences.
13. Mr Tamboly has a request in regard to the sanctioned plans for the structure. His clients have an apprehension that the commercial area of 10,000 sq ft that is part of paragraph 17 (iii) of Kulkarni J’s order of 15th July 2019 is not actually available. That aspect is currently kept pending as well, leaving all contentions open.
20. It is the commitment to pay GST that Mr Andhyarujina for Saifee Developers assails today in the Review Petition.
D. FACTUAL BACKGROUND
21. Shanklesha Constructions, Respondent No.1, is a partnership firm of developers. It says that Chajjed, Respondent No.3, is an erstwhile partner, since expelled. That dispute is not before me today. The Petitioner, Saifee Developers, a private limited company also in the business of real estate development, claims it invested Rs. 15 crores in Shanklesha Constructions’ development project at village Shahad, Taluka Kalyan, District Thane under an undated Memorandum of Understanding (“MoU”). The project is called “Sai Nirvana”. Saifee Developers claims that the MoU gave it the choice of either (i) joining the Shanklesha Constructions partnership with a 25% share in the profits and losses; or (ii) taking an allotment of 40,000 sq ft saleable area in the Sai Nirvana project. Saifee Developers says the MoU was executed on 29th May 2015. The dispute is that Saifee Developers says it is entitled to 44 flats in all, comprising this 40,000 sq ft saleable area. Shanklesha Constructions disputes the number of flats. It is not in dispute that 25 flat sale agreements are executed, and 10 of these are registered. Shanklesha Constructions says an annexure to the MoU, on which Saifee Developers relies, is fabricated.
22. For the present purposes, the next relevant date is 14th June 2018. This is the date on which the 2nd Respondent sent an email to Saifee Developers and others inter alia setting out these two options; saying that, on that day, Saifee Developer’s Yusuf Saifee had decided to opt for option 2, and option 1 (of becoming a 25% partner) stands cancelled. The email goes on to say that the agreements for some flats were being registered. Saifee Developers accepts this email and accepts that it did, in fact, exercise option 2.
23. Thus, for our purposes, this much is undisputed:
(a) The payment of Rs. 15 crores by Saifee Developers to Shanklesha Constructions between June 2015 and January 2016; and
(b) The exercise by Saifee Developers of the flat purchase option on 14th June 2020.
24. Now ten flats have been registered, and Saifee Developers have also (around 12th March 2020) paid Rs. 35,50,200 as GST in respect of these flat sales, said to represent or cover Rs. 3 crores. The remaining dispute is about GST on the rest.
25. In any case, there were still disputes about the number of flats and so on, and, on 31st May 2019, Saifee Developers invoked arbitration. On 12th June 2019, it filed this Arbitration Petition.
26. On 15th July 2019 came the order of GS Kulkarni J, which returned a prima facie finding in favour of Saifee Developers and afforded it some ad-interim protection. This is the order of which Shanklesha Constructions, in its present Interim Application, seeks a recall or modification.
27. There was then the order of 31st January 2020, the relevant parts of which I have set out above, and then the order of 28th February 2020, of which Saifee Developers seeks a review.
E. QUESTION FOR DETERMINATION
28. There is only one question for determination: Under the law as it stands, is Saifee Developers correct in saying it has no GST liability in respect of the balance payment it has made to Shanklesha Constructions for the purchase of flats? (“Balance payment” because, admittedly, some portion of the entire payment of Rs.15 crores has been appropriated toward 10 flats, and Saifee Developers has paid Rs.35,50,200/- as GST).
29. If Saifee Developers’ contention is wrong, then its Review Petition fails, and Shanklesha Constructions’ Interim Application must succeed. If Saifee Developers is correct, then its Review Petition will have to allowed.
30. I am not dismissing the Review Petition on the basis that the statement made by Saifee Developers through its counsel was on instructions. Ordinarily, I would have done so; but that statement relates to an interpretation of law and hence slightly different considerations very possibly arise.
F. SECTION 13 OF THE GST ACT
31. The GST Act came into force with effect from 8th July 2017. Thus, it was not in force when Saifee Developers paid Rs.15 crores to Shanklesha Constructions. But it was in force when Saifee Developers exercised its option on 14th June 2018, electing to treat this amount of Rs.15 crores as being towards the purchase of flats. There is no dispute that GST is payable on flat purchase agreements. The question is, when does that incidence of GST fall?
32. The sale of a flat or an apartment is, it is admitted, a ‘service’ within the meaning of the law.
33. Section 13 of the GST Act, as amended, reads:
“13. Time of supply of services
(1) The liability to pay tax on services shall arise at the time of supply, as determined in accordance with the provisions of this section.
(2) The time of supply of services shall be the earliest of the following dates, namely:-
(a) the date of issue of invoice by the supplier, if the invoice is issued within the period prescribed under section 31 or the date of receipt of payment, whichever is earlier; or
(b) the date of provision of service, if the invoice is not issued within the period prescribed under section 31 or the date of receipt of payment, whichever is earlier; or
(c) the date on which the recipient shows the receipt of services in his books of account, in a case where the provisions of clause (a) or clause (b) do not apply:
PROVIDED that where the supplier of taxable service receives an amount up to one thousand rupees in excess of the amount indicated in the tax invoice, the time of supply to the extent of such excess amount shall, at the option of the said supplier, be the date of issue of invoice relating to such excess amount.
Explanation: For the purposes of clauses (a) and (b)—
(i) the supply shall be deemed to have been made to the extent it is covered by the invoice or, as the case may be, the payment;
(ii) “the date of receipt of payment” shall be the date on which the payment is entered in the books of account of the supplier or the date on which the payment is credited to his bank account, whichever is earlier.
(3) In case of supplies in respect of which tax is paid or liable to be paid on reverse charge basis, the time of supply shall be the earlier of the following dates, namely:-
(a) the date of payment as entered in the books of account of the recipient or the date on which the payment is debited in his bank account, whichever is earlier; or
(b) the date immediately following sixty days from the date of issue of invoice or any other document, by whatever name called, in lieu thereof by the supplier:
PROVIDED that where it is not possible to determine the time of supply under clause (a) or clause (b), the time of supply shall be the date of entry in the books of account of the recipient of supply:
PROVIDED FURTHER that in case of supply by associated enterprises, where the supplier of service is located outside India, the time of supply shall be the date of entry in the books of account of the recipient of supply or the date of payment, whichever is earlier.
(4) In case of supply of vouchers by a supplier, the time of supply shall be—
(a) the date of issue of voucher, if the supply is identifiable at that point; or
(b) the date of redemption of voucher, in all other cases.
(5) where it is not possible to determine the time of supply under the provisions of sub-section (2) or sub-section (3) or sub-section (4), the time of supply shall—
(a) in a case where a periodical return has to be filed, be the date on which such return is to be filed; or
(b) in any other case, be the date on which the tax is paid.
(6) The time of supply to the extent it relates to an addition in the value of supply by way of interest, late fee or penalty for delayed payment of any consideration shall be the date on which the supplier receives such addition in value.
34. We are concerned with Section 13(2)(b) and Explanation (ii). Specifically, the question is when is the ‘date of receipt of payment’ where no tax invoice is issued under Section 31? Explanation (ii) tells us that the date of receipt of payment is the earlier of (i) the date on which the payment is entered in the books of account of the supplier or (ii) the date on which the payment is credited to the supplier’s bank account.
35. As we have seen, the entire amount of Rs.15 crores was paid between January and June 2015, before the GST Act came into force on 8th July 2017. Saifee Developers exercised its option on 14th June 2018, just under a year after the GST Act became operative. In 2018, 25 agreements for sale were executed, and 10 of these were registered. These are said to account for Rs.3 crores from the Rs.15 crores, and Saifee Developers has paid Rs.35,50,200/-.
36. What of the rest? Now that Saifee Developers has exercised its options to buy flats, and Shanklesha Constructions has agreed to ‘supply’ these, is not Shanklesha Constructions liable to pay GST on the balance, and is this not recoverable from Saifee Developers?
37. Mr Andhyarujina would have it that the ‘time of supply’ has not arrived. This situation, he says, lies in a very peculiar matrix of its own. The amount as sale consideration was paid before the advent of the GST Act. That statute did not apply at the time of payment. There is no invoice. Therefore, this takes us to sub-clause (b) of subsection (2) of Section 13. He dissects the section thus:
the date of provision of service, if the invoice is not issued within the period prescribed under section 31
the date of receipt of payment, —
whichever is earlier;
38. The date of receipt of payment is, he submits, irrelevant, because that date preceded the GST Act. The ‘date of receipt of payment’ can only be a date after the GST Act came into effect. Therefore, this leaves ‘the date of provision of the service’ (since no invoice is issued under Section 31. The ‘provision of service’ can only mean the registration of an agreement for the balance flats, because only that is enforceable. As yet Saifee Developers has no decree for specific performance compelling such an agreement for 44 flats. Therefore, no service has been provided to Saifee Developers, and there is, therefore, no question of it being required to pay any amount at all towards service tax.
39. Consequently, in Mr Andhyarujina’s submission, the Explanation has no application whatsoever to such a case. If Shanklesha Constructions cannot show the payment by Saifee Developers in its books toward a sale of flats, i.e., not as a capital contribution to the firm, then the first part of Explanation (ii) has no role to play. And since the payment, in any case, precedes the GST Act, and was done before the option was exercised, the date of receipt of payment cannot fall under the second part of Explanation (ii) either. At the time when that payment was made, it was not for a sale of flats, and the GST Act was not in operation.
40. There are, as Mr Khandeparkar points out, two answers to this. One is at the factual level, and it is easily met: by showing the amount in the suppliers, i.e., Shanklesha Constructions’ books as towards the sale of flats. For this, he points to Exhibit “E” to an additional affidavit dated 5th January 2021. This is a ledger account from 1st April 2012 to 27th November 2020 in the Shanklesha Constructions’ books of the Saifee Developers’ account. As of 31st March 2019, this shows the entire amount of Rs.13.50 crores as towards the sale of flats, and the balance amount of Rs.1.50 crores from Ali Asgar, on behalf of Saifee Developers, also for that purpose. By 31st March 2019, this could not possibly have been towards any capital account towards a partnership — Saifee Developers had already exercised its option to treat this as a sale of flats on 14th July 2018, after the GST Act came into force. This is also borne out by Shanklesha Constructions’ Income Tax returns for the Assessment Year 2019– 20 (Financial Year 2018–2019), at Exhibit “A”, page 563–621 of a further affidavit dated 29th January 2021; Exhibit “B”, showing the break-up, at page 622; and Exhibit “C”, a Chartered Accountant certificate dated 28th January 2021, page 623. This shows an amount of Rs.13.50 crores received from Saifee Developers “against booking” and another Rs.1.50 crores from Ali Asgar, making a total of Rs.15 crores.
41. This, Mr Khandeparkar submits, provides the second answer, on law. The factual matrix thus brings the matter squarely within the frame of Explanation (ii) to Section 13(2). Countering Mr Andhyarujina’s dissection with his own, Mr Khandeparkar submits that the emphasis must me on the Explanation, one that cannot just be wished away. The second explanation may be viewed thus:
(ii) “the date of receipt of payment” shall be
— the date on which the payment is entered in the books of account of the supplier
— the date on which the payment is credited to his bank account,
whichever is earlier.
42. Read this along with Section 13(2)(b), Mr Khandeparkar submits, not divorced from it, and the structure is clear. We are not concerned with the first part of Section 13(2)(b), for there is no invoice in question. The second part speaks of the ‘date of receipt of the payment’; and this has an ‘Explanation’. Self-evidently, a statutory clause that has an explanation must be read with the Explanation; the statute-framers obviously saw that the operative clause needed its meaning clarified — hence the ‘explanation’.
43. I believe Mr Khandeparkar is correct.
44. In Chanakya Mandal v Union of India, (2017 SCC OnLine Bom 1719)a Division Bench of this Court said:
19. Further, as stated by the Hon’ble Justice G.P. Singh in the Principles of Statutory Interpretation, Seventh Edition page 172-173 that an explanation may be added to include something within or exclude something from the ambit of the main enactment or the connotation of some word occurring in it. It is possible that it may have been added in a declaratory form to retrospectively clarify a doubtful point of law. Still further, there can be a limited retrospectivity as well and all of this is permitted by law. It is too well settled to require any reiteration that in matter of taxation the legislature enjoys greater freedom and latitude and it is allowed to pick and choose districts, objects, persons, methods and even rates of taxes if it does so reasonably. In this case, the legislature has indeed acted reasonably and taxed the service provided by training and coaching centre and classes.
45. In S Sundaram Pillai v VR Pattabiraman, (1985) 1 SCC 591)the Supreme Court explained the object of a statutory ‘explanation’ thus:
“53. Thus, from a conspectus of the authorities referred to above, it is manifest that the object of an Explanation to a statutory provision is—
(a) to explain the meaning and intendment of the Act itself,
(b) where there is any obscurity or vagueness in the main enactment, to clarify the same so as to make it consistent with the dominant object which it seems to subserve,
(c) to provide an additional support to the dominant object of the Act in order to make it meaningful and purposeful,
(d) an Explanation cannot in any way interfere with or change the enactment or any part thereof but where some gap is left which is relevant for the purpose of the Explanation, in order to suppress the mischief and advance the object of the Act it can help or assist the Court in interpreting the true purport and intendment of the enactment, and
(e) it cannot, however, take away a statutory right with which any person under a statute has been clothed or set at naught the working of an Act by becoming an hindrance in the interpretation of the same.”
46. This view was re-affirmed by the Supreme Court in Dilip N Shroff v CIT, (2007) 6 SCC 329)where the foregoing passage was cited with approval, along with a reference to Swedish Match AB v Securities & Exchange Board of India & Anr (2004) 11 SCC 641).
47. I do not see how I can read Section 13(2)(b) without the Explanation, which is what Mr Andhyarujina effectively invites me to do. The phrase ‘date of receipt of payment’ was one, the legislature evidently felt, that needed an explanation. Is it the date of entry of payment in the supplier’s books of account? Or the date of receipt in the bank account? If both exist, which is to be reckoned as the starting date? Evidently, one of the two must exist; otherwise, there is no ‘receipt of payment’ at all. By the Explanation, the legislature expressly recognised a book-entry — an accounting entry — as one possible date of payment. But it also acknowledged that there may be a different date of actual payment. It, therefore, recognised both, and then said — and this is where the Explanation really comes to bear — that the earlier of the two entries will be the relevant date for reckoning the ‘time of supply of services’.
48. Mr Khandeparkar points out that, underlying this, there is a clear mischief, or potential mischief, that the statute seeks to cure; a potential loophole that is being plugged. If, as Mr Andhyarujina suggests, the ‘time of supply of services’ was left open-ended until possession or some such late date, then there was every likelihood of revenue being defeated simply by entering into an agreement, even paying the money, and then not availing of the ‘service’ (i.e., possession of the property) for decades together; or even staving off the signing and registration of an agreement.
49. I believe Mr Khandeparkar is completely correct in this reading of the section. He is also correct in saying that that pre-GST payments cannot simply be ignored. True, the amount of Rs.15 crores was paid before the GST Act came into force. But the option to treat it as a flat purchase advance or price was on 14th June 2018. The GST Act came into effect with effect from 8th July 2017. Therefore, it stands to reason that the amount already paid would have to be treated as liable to GST the moment the GST Act began to operate. The 2018 option had to relate back to the date of payment; but on that date, there was no GST. Consequently, the GST regime would apply to this transaction from the date that Act came into force.
50. Saifee Developers’ construct is actually self-defeating. It accepts that on 14th June 2018 it opted to treat the entire amount as a purchase price. The wrangle is about the number of flats. That is immaterial for my purposes. Whether it is one huge flat or a hundred smaller flats will make no difference to the applicability of GST or to the concept of ‘time of supply of services’ under Section 13. Once the nature of the transaction is determined, then the Section begins to operate.
51. Notably, Section 13(2) uses ‘earliest’ not once, but twice. The first time is in the main sub-section (2). It is repeated in Explanation (ii). The emphasis, therefore, is clearly to peg the ‘time of supply of services’ to the logically earliest possible date: when the service was provided or when the payment was received in Section 13(2)(b); and, if a question of date of payment arises, then the earlier of the entry in the books of account or date of receipt of payment.
52. Shanklesha Constructions’ entry in its books is after the date of receipt of payment. The earlier of the two must apply. It is nobody’s case that the GST regime will be reckoned back to a time when it did not exist. Hence, logically, if the payment was already in received in Shanklesha Constructions’ account on the date the GST Act came into force, that must be the date taken for the ‘time of supply of services’.
53. Viewed like this, it stands to reason that the statement Mr Tamboly, learned Counsel for Saifee Developers, made on 28th February 2021 in paragraph 5 is correctly founded in law. There is no error apparent, and, apart from all other considerations, there is simply no ground for review made out at all.
54. As I said, I have not proceeded simpliciter on holding Saifee Developers to the statement it instructed i
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ts counsel to make. G. CONCLUSION AND ORDER 55. Consequently, the Review Petition, being entirely without merit, is dismissed. 56. Correspondingly, Shanklesha Constructions’ Interim Application will have to be allowed. Saifee Developers had absolutely no justification in not paying the remaining GST and interest. It is unclear whether it has even paid the stamp duty on the MoU/Agreement as yet. It cannot be in default and yet continue to squat on a protective ad-interim order granted in exercise of equitable and discretionary jurisdiction. 57. Therefore, the order of 15th July 2019 is recalled and vacated to the extent of the relief granted in paragraphs 17(i) to (v) and 20. 58. Now Clause (ii) of the 15th July 2019 order is: (ii) The respondents are directed not to create any third party rights in respect of 15 flats which the respondents intend to transfer to the petitioner, the details of which are stated in the second part of the statement at “Exhibit G” (page 122 of the paper book) This finds reflection in paragraph 8 the 28th February 2020 order: 8. In view of these statements, upon the Petitioners making payment of the balance amount of GST and accrued interest— (a) the Respondents will register the 15 flats mentioned in paragraph 17(ii) at Exhibit “G” to the Affidavit in Reply and listed at page 122 of the paper book in favour of the Petitioners. (b) The stamp duty is to be paid in accordance with the agreement between the parties. (c) Upon those flats being registered and the stamp duty being paid any original documents being held by the Petitioners will be returned to the Respondents. (d) If there is any difficulty in this regard liberty to the parties to apply either to the Court or to the arbitrator in an appropriate application under Section 17. 59. Evidently, if paragraph 17(ii) of the 15th July 2019 order is vacated, this portion of paragraph 8(a) of the 28th February 2020 order cannot survive; for the later order continues the previous one, this time on the statement made by Saifee Developers to pay the GST in 12 weeks. Since Saifee Developers has not made that payment, there is no question of it being allowed to enjoy continued protections including (a) registration of 15 flats or (b) keeping any area free of encumbrances, etc. 60. I placed the matter for a clarification yesterday, 30th March 2021. Mr Khandeparkar on instructions stated that if Saifee Developers makes payment of the GST due (and interest up to date plus penalty if any) within 15 days, i.e., by 15th April 2021, Shanklesha Constructions will stand by its statement to register sale agreements in respect of 15 additional flats. If payment of GST and interest is not made by 4:30 pm on 15th April 2021, then Shanklesha Constructions will be relieved of this statement and will not be required to register any additional flat purchase agreements. I accept this statement. It is consistent with the view that I have taken, and also takes into account Shanklesha Constructions’ case that only 25 flats were to be provided. This will be without prejudice to the rival contentions in arbitration. 61. This statement is made taking into account that there are several bank holidays between today and 15th April 2021. These bank holidays will not furnish Saifee Developers a cause to seek any extension. 62. Whether or not GST and interest (and penalty if any) is or is not paid by that date, the further embargo on Shanklesha Constructions not to create any third party rights in respect of 10,000 sq ft of additional commercial area stands vacated. However, this question of Saifee Developers’ claim to entitlement to an additional 10,000 sq ft or more commercial area is left open to the arbitral proceedings. I am informed after pronouncement of judgment that stamp duty has been paid, but no arbitrator has yet been appointed. There is a pending application under Section 11. 63. In view of this, Shanklesha Constructions will need to withdraw its pending appeal and the Interim Application in that appeal, as assured on 28th February 2020, if not already done. 64. The Interim Application and Review Petition are disposed of in these terms. Though the matters are in the Commercial Division of this Court, and Section 35 of the Code of Civil Procedure, 1908 (“CPC”) as amended by the Commercial Courts Act, 2015 requires that costs follow the event, in the facts of the case, and given the status of the parties and the nature of the controversy, I will leave parties to bear their own costs. 65. At this stage, Mr Andhyarujina submits that the 15th July 2019 order, since it has been operative for a long time, should be continued for a further period of two weeks. I am unable to accept this submission. I have recorded Mr Khandeparkar’s statement as noted above. It simply cannot be that without abiding by its commitment, made not once but twice, Saifee Developers can continue to enjoy the fullness of an ad-interim order. The application for stay is rejected. 66. All concerned will act on production of an ordinary copy of this order.