Page 174 - GSTL_26th March 2020_Vol 34_Part 4

684 GST LAW TIMES [ Vol. 34
15.2 On the above issue, we find that in the case of Anil Kumar Agnihotri
v. Commissioner Central Excise, Kanpur, 2018 (10) G.S.T.L. 288 (All.), Hon’ble Al-
lahabad High Court departed from the judgment of Customs & Central Excise v.
Sachin Malhotra reported as 2015 (37) S.T.R. 684 (Uttarakhand). Hon’ble Allaha-
bad High Court has held as under :
“16. A plain and simple reading of the relevant provisions would reveal
that what is sought to be taxed under the Act is the service provided by a
person under a rent-a-cab scheme. It makes no distinction between renting
or hiring. The two terms have not been specifically defined under the Act
and as such they have to be assigned the meaning which is acceptable in
common parlance. Ordinarily, in common usage, there is hardly any dis-
tinction between ‘renting’ or ‘hiring’ and both the terms are usually used as
synonym.
17. In the case at hand we find that the appellant indulges in providing
service under a rent-a-cab scheme in relation to a cab and therefore irre-
spective of whether he retains possession and control of the vehicle or pass-
es it to the consumer, the service so rendered by him would fall within the
taxable service as defined under Section 65(105)(o) of the Act and is charge-
able to tax under Section 66 of the Act.
18. The “rent-a-cab scheme” 1989 formulated by the Central Government
in exercise of powers under Section 75 of the Motor Vehicles Act, 1988
providing for obtaining a licence by the operator of the scheme has nothing
to do with the provisions relating to the imposition/chargeability of service
tax. Therefore notwithstanding the above scheme, any person providing
service of renting a motor cab would be amenable to service tax under the
Act.”
15.3 From the above, it is seen that the taxing statute, do not make any
distinction between renting or hiring. Further, irrespective of possession and
control of the yehicle, the service so rendered falls within the taxable service.
Thus the contention of appellant that hiring of vehicle is different from renting is
untenable.
16. Now we take up the third issue whether input tax credit on GST
charged by the contractors for hiring of buses and cars for transportation of em-
ployees is admissible when there is a restriction on admissibility of input tax
credit on Rent-a-Cab service as provided in Section 17(5)(b)(iii) of CGST Act,
2017 and HSGST Act, 2017 which is the main issue/question.
16.1 To determine the aforesaid main question/issue, it would be ap-
propriate to refer to the statutory provisions applicable in the given context.
Section 16. Eligibility and conditions for taking input credit. - (1) Every
registered person shall, subject to such conditions and restrictions as may
be prescribed and in the manner specified in section 49, be entitled to take
credit of input tax charged on any supply of goods or services or both to
him which are used or intended to be used in the course or furtherance of
his business and the said amount shall be credited to the electronic credit
ledger of such person.
(2) Notwithstanding anything contained in this section, no registered per-
son shall be entitled to the credit of any input tax in respect of any supply
of goods or services or both to him unless, -
(a) he is in possession of a tax invoice or debit note issued by a
supplier registered under this Act, or such other tax paying
documents as may be prescribed;
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