BLOGS

Circular No. 185/17/2022-GST New Delhi, Dated the 27th December, 2022 1. Attention is invited to sub-section (2) of section 75 of Central Goods and Services Tax Act, 2017 (hereinafter referred to as “CGST Act”) which provides that in cases where the appellate authority or appellate tribunal or court concludes that the notice issued by proper officer under sub-section (1) of section 74 is not sustainable for reason that the charges of fraud or any willful-misstatement or suppression of facts to evade tax have not been established against the person to whom such notice was issued (hereinafter called as “noticee”), then the proper officer shall determine the tax payable by the noticee, deeming as if the notice was issued under sub-section (1) of section 73. 2. Doubts have been raised by…

Circular No. 183/15/2022-GST dated 27th December 2022 Section 16 of the Central Goods and Services Tax Act, 2017 (hereinafter referred to as “CGST Act”) provides for eligibility and conditions for availing Input Tax Credit (ITC). During the initial period of implementation of GST, during the financial years 2017-18 and 2018-19, in many cases, the suppliers have failed to furnish the correct details of outward supplies in their FORM GSTR-1, which has led to certain deficiencies or discrepancies in FORM GSTR-2A of their recipients. However, the concerned recipients may have availed input tax credit on the said supplies in their returns in FORM GSTR-3B. The discrepancies between the amount of ITC availed by the registered persons in their returns in FORM GSTR-3B and the amount as available in their FORM GSTR-2A…

Instances have been brought to the notice where the unregistered buyers, who had entered into an agreement/ contract with a builder for supply of services of construction of flats/ building, etc. and had paid the amount towards consideration for such service, either fully or partially, along with applicable tax, had to get the said contract/ agreement cancelled subsequently due to non-completion or delay in construction activity in time or any other reasons. In a number of such cases, the period for issuance of credit note on account of such cancellation of service under the provisions of section 34 of the Central Goods and Service Tax Act, 2017 (hereinafter referred to as ‘CGST Act’) may already have got expired by that time. In such cases, the supplier may refund the amount…

Circular No. 186/18/2022-GST dated 27th December 2022 Taxability of No Claim Bonus offered by Insurance companies Whether the deduction on account of No Claim Bonus allowed by the insurance company from the insurance premium payable by the insured, can be considered as consideration for the supply provided by the insured to the insurance company, for agreeing to the obligation to refrain from the act of lodging insurance claim during the previous year(s)? As per practice prevailing in the insurance sector, the insurance companies deduct No Claim Bonus from the gross insurance premium amount, when no claim is made by the insured person during the previous insurance period(s). The customer/ insured procures insurance policy to indemnify himself from any loss/ injury as per the terms of the policy, and is not…

Circular No. 184/16/2022-GST dated 27th December 2022 Attention is invited to sub-section (8) of section 12 of Integrated Goods and Services Tax Act, 2017 (hereinafter referred to as “IGST Act”) which provides for the place of supply of services by way of transportation of goods, including by mail or courier, where location of the supplier as well as the recipient of services is in India. As per clause (a) of the aforesaid sub-section, the place of supply of services by way of transportation of goods, including by mail or courier, to a registered person shall be the location of such registered person. However, the proviso to the aforesaid sub-section which was inserted vide the Integrated Goods and Services Tax (Amendment) Act, 2018 w.e.f. 01.02.2019 provides that where the transportation of…

1.Provisions under the TNGST Act, 2017: Section 67(12) of the TNGST Act 2017 states that, the Commissioner or an officer authorised by him may cause purchase of any goods or services or both by any person authorised by him from the business premises of any taxable person, to check the issue of tax invoice or bills of supply by such taxable person and on return of goods so purchased by such officer, such taxable person or any person in charge of the business premises shall refund the amount so paid towards the goods after cancelling any tax invoice / bill of supply issued earlier.As per Notification No. 4 dated 12-07-2017 issued by the Commissioner, the Joint Commissioners concerned have been authorised for the purpose of Section 67 of the TNGST…

The instances of search, inspection and investigation has increased manifold, it is very important to keep in my mind, no officers can force any taxpayer to make the payment of any tax, interest, or penalty on the spot. Delhi High Court in the case of Vallabh Textiles has reiterated deposit of tax in Form GST DRC 03 is voluntary by the taxpayer and since no acknowledgment in DRC 04 was issued by the department, the amount paid was directed t be refunded back to the taxpayer. Further, HC refers to Gujarat HC directions in Bhumi Associate against which backdrop CBIC Instruction No. 01/2022-23 [GST – Investigation] dated May 25, 2022 was issued relating to ‘Deposit of tax during the course of search, inspection or investigation’ and pertinently mentions that, CBIC…

Major highlight of the 48th GST Council meeting held on 17th December 2022  Clarification on charging compensation cess on SUV’s. If all the below four conditions are met it will be classified as SUV and higher rate of compensation cess of 22% is applicableIt is popularly known as SUV andEngine capacity exceeding 1500 cc andLength exceeding 4000 mm andGround clearance of 170 mm.·         No GST is payable where the residential dwelling is rented to a registered person if it is rented it in his/her personal capacity for use as his/her own residence and on his own account and not on account of his business.·         Incentive paid to banks by Central Government under the scheme for promotion of RuPay Debit Cards and low value BHIM-UPI transactions are in the nature of…

In the matter of Krishna Institute of Medical Sciences Ltd Andhra Pradesh AAR holds that administration of COVID-19 vaccination by Hospitals is a ‘Composite Supply’, wherein the principal supply is the ‘sale of vaccine’ and the auxiliary supply is the service of ‘administering the vaccine’ and the total transaction is taxable at 5%; AAR observes that both the supplies i.e. sale of vaccine and administering of vaccine are intrinsically connected with each other, and it is viewed as a single package by the recipient, where he purchases the vaccine and gets it administered subsequently; AAR determines that, generally, the primary requirement of recipient would be the receipt of vaccine, basing on his choice i.e., Covishield or Covaxin, thus, the supply of goods constitutes the major supply; Moreover, AAR apprises that, proper administration of…

GSTN gives the taxpayers facility to revoke the suspension of their GST registration on their own with a single click of a button in the common portal itself; Taxpayers can access the facility known as “Initiate Drop Proceedings’ after filing their pending 6 returns under ‘Notices and orders’ in the common portal; GSTN explains that this facility is for those who file their pending returns after receipt of SCN ; This enables the taxpayers, who have filed their returns but have not responded to the SCN, to revoke the suspension all on their own: GSTN

Uttrakhand AAR in case of an engineering company holds that the nominal cost recovered from employees for provision of subsidised canteen facilities will be subject to GST;Applicant recovers nominal amount from the employees for canteen facility and discharges GST @5% on the taxable value which is sum total of the cost of the canteen service provider plus 10% notional mark up; In this connection, Applicant is seeking advance ruling on (i) whether the nominal amount of recoveries made by the Applicant from the employees constitutes "Supply" under the provisions of Section 7 of CGST Act, 2017 (ii) whether GST is liable to be paid on that part of the amount collected from their employees towards provision of food and (iii) whether Input Tax Credit (ITC) is available on the GST…

In the matter of Federal Mogul Goetze India Ltd Karnataka AAR rules that the subsidized deduction made by employer (Applicant manufacturing auto components in its factory) from its 3200 employees working in factory who are availing food from in-house canteen facility “would be considered towards ‘supply’ of canteen services” u/s 7 of CGST/KGST Act 2017; AAR observes that, since the services are covered under services provided in canteen and other establishments classified under SAC 996333, said services are taxable @5% without ITC as per Sl. No. 7 of Notification No. 11/2017-CT (R); Consequently, AAR clarifies that applicant is not entitled to ITC of the GST paid on manpower supply services that are used for providing canteen facility to employers; Observes that applicant has engaged the services of third party for…

Karnataka HC grants interim-stay of order disallowing Input Tax Credit (ITC) w.r.t. IGST on import to the tune of Rs. 3.5 crores (approx.) with interest and penalty for July 2017 to March 2020 on the sole technical ground that ITC claimed by Petitioner as per Form GSTR-3B is in excess of ITC available in terms of Form GSTR-2A; Writ petition has been filed asserting that denial of ITC for the period prior to amendment in FORM GSTR-2A vide Notification No. 79/2020, on the ground that there is no corresponding ITC of IGST reflecting in auto-populated GSTR-2A is illegal, unjust and erroneous; Being eligible to ITC on the basis of IGST paid at the time of filing the bills of entry (BoE) for the year FY 2017-18 and FY 2019-20, assessee filed GSTR-3B, however,…

Genpact India Pvt. Ltd. vs. UOI & Ors. Punjab & Haryana (P&H) HC sets-aside rejection of refund claim categorically holding that Business Process Outsourcing (BPO) unit of assessee (Genpact India Pvt. Ltd.) is not an “Intermediary” in the prevailing GST regime upon finding that, Assessee is involved by a foreign entity, Genpact International (GI) for actual performance of BPO services and information technology services to the customers of GI; HC deems Revenue’s stance that assessee is in a principal-agent relationship with GI as “without any basis” and “clearly erroneous”; Assessee filed claim for refund of un-utilized ITC amounting to Rs.27 crores (approx..) on account of zero rated supplies of services without payment of IGST under Letter of Undertaking but Rs. 26 crores (approx.) got sanctioned vide order-in-original and remaining amount came to be rejected;…

Madras HC in a 123 pager judgment allows Revenue’s appeals against various educational institutions concerning exemption under Section 11; Directs the Revenue to proceed further on the basis of assessment orders and also cancel the registration certificate issued to the various Trusts under Section 12A and not to treat them as charitable; HC also directs the Revenue to proceed to reopen the previous assessments, if permissible by law, based on tangible materials relating to collection of capitation fee; HC holds that the amounts collected in quid pro quo for allotment of seat in deviation of the Tamil Nadu Educational Institutions (Prohibition of Collection of Capitation Fee) Act, 1992 as capitation fee; On voluntary contribution, HC holds that unless a contribution is made gratuitously and without consideration, it cannot be treated as…

GSTN in pursuance of Notification no. 78/2022 dated October 15,2020(Explore (cbic.gov.in), which mandated the taxpayers to report minimum 4 digit or 6 digit of HSN Code in table-12 of GSTR-I on the basis of their Aggregate Annual Turnover (AATO) in preceding financial year, notifies changes to be implemented for facilitation of taxpayers in a phase-wise manner; W.r.t. the taxpayers with AATO of more than 5 crores, apprises that the taxpayers are required to mandatorily report 4-digit HSN codes for goods & services, and for Part II of the Phase I, the taxpayers will now have to mandatory report 6-digit HSN code; In respect of Phase II, it shall be mandatory for the taxpayers with AATO of up to 5 crores to report HSN at 4-digits ; Specifies that Part I & Part II of…

SC, in a landmark ruling, in the context of "advancement of general public utility", holds that any body which involves in "trade or commerce" and charges over and above cost, would cease to be a Charitable Institution for the purpose of Income tax Act; When services are provided at cost or nominal basis, the same will not constitute "trade or commerce" but not when charges are markedly above cost; Three judges bench, while pronouncing the verdict, remarks that they have comprehensively dealt with each category of cases involving Development Authorities, Cricket Associations, Trusts and other similarly situated assessees; In a second batch of appeals, concerning educational institutions, Apex Court holds that the object of such institutions must be "wholly, solely and exclusively" for the purpose of education; SC rules that…

Delhi HC holds that “renting of a residential dwelling by a proprietor of a registered proprietorship firm, who rents it in his/her own personal capacity for use as his/her own residence as well as not for use in the course or furtherance of business of his/her proprietorship firm and such renting is on his/her own account and not that of proprietorship firm shall be exempt from GST”; Petitioner is challenging Notification No. 04/2022-Central Tax (Rate) dated  July 13, 2022 by virtue of which exemption granted for  renting of residential accommodation to tenants who are registered under GST has been withdrawn; Petitioner avers that similarly placed businesses like itself who are doing their business as a proprietary concern are affected by this amendment; Accepting Revenue’s affidavit giving clarify on this aspect,…

Gujarat AAAR rules that ‘Parathas’ are different from Plain Chapatti or Roti, appropriately classifiable under Chapter heading 2106 (i.e. Food preparations not elsewhere specified or included), upholds AAR order; Notes that, Appellant (Vadilal Industries) sells different types of packed and frozen ‘Parathas’ such as Malabar Paratha, Mixed Veg Paratha. Onion Paratha, Methi Paratha, Alu Paratha. Laccha Paratha, Mooli Paratha and Plain Paratha, which requires to be cooked on pan or griddle for-3-4 minutes; AAAR clarifies that HSN 1905 covers items which are completely cooked and ready for consumption whereas the Appellant's product requires 3-4 minutes of cooking on a pan or griddle before consumption', hence, on this ground, Parathas do not merit classification under CH 1905; On the contention that ‘parathas’ are similar to Plain Chapatti or Roti,  AAAR unwraps…

Tamil Nadu AAR rules that Applicant is not entitled to claim ITC on the goods/services used in installation of Solar Power Panels for generation of electricity; AAR notes that, Applicant procured, erected and commissioned Solar Power Panels for generation of electricity at their additional place of business and executed an “Energy Wheeling Agreement for Solar power plant” agreement with Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO) for wheeling the Solar energy generated from its solar plant through TANGEDCO’s transmission and distribution network; Applicant procured electricity from TNEB which includes electricity generated by solar power panels installed at additional place of business and wheeled by TNEB for captive use at the principal place of business; AAR observes that, Lease Deed between Owners as Lessor and Tenants as Lessee, provides that,…

The following compliances in respect of a particular financial year has been extended and fixed as 30th November of the next financial year or furnishing of relevant annual return, whichever is earlier Corresponding provision of the CGST Act, 2017Corresponding compliance requirementsSection 16(4)Claiming of ITC in respect of any invoice or debit note in the returnSection 34(2)Declaration of the details of credit notes in the returnProviso to Section 37(3)Rectification of particulars in details of outward suppliesProviso to Section 39(9)Rectification of particulars furnished in a ReturnProviso to Section 52(6)Rectification of particulars in the statement furnished by a TCS operator Doubts have been raised whether the said extended timelines are applicable in respect of compliances for FY 2022-23 onwards or whether the same are also applicable to the compliances for FY 2021-22. Doubts…

Registration liable to be cancelled in additional two situations Registered person required to file monthly returns fails to furnish returns for a continuous period of six monthsRegistered person required to file quarterly returns has not furnished returns for a continuous period of two tax periods Time limit to avail input tax credit extended Section 16(4) of the CGST Act is amended to give time to avail input tax credit in respect of any invoice or debit note for the previous financial year upto 30th November following the end of financial year (Previously it was allowed till September returns following the end of financial year)Time limit to issue credit notes has been extended till 30th November following the end of financial year ((Previously it was allowed till September returns following the…

Karnataka AAR rules that GST is inapplicable on consideration and advance received for sale of residential plots/sites proposed to be converted by Applicant from own land; Further, GST is also not applicable on said sale even when the plots/sites are sold after completion of works related to basic necessities; Applicant submits that they develop the land as per regulations of District Town and Country Planning Act which includes formation of roads, formation of rain water drains, laying of electricity cables, water pipes, sewerage lines, drilling of borewells, construction of water tanks, setting up of power substation, without which the concerned authorities will not grant permission to sell plots to individuals for construction of houses; Derives that, sale of land is listed under entry no. 5 of Schedule III of CGST…

Karnataka AAR holds that ‘Kingfisher Radler’ having different variants merits classification as carbonated beverages of fruit drink, all covered under tariff heading 2202 99 90 attracting GST @ 28% along with applicable Compensation Cess of 12% in terms of Sl. No. 12B of Schedule IV to the Notification No. 1/2017- Central Tax (Rate) dated June 28, 2017, as amended; The Applicant sought clarification of their product “Kingfisher Radler”, manufactured & made available in three flavours i.e. Ginger lime, Mint lime and lemon; In this context, referring to the Section Notes and Chapter Notes of the relevant Chapters of the Customs Tariff and also the corresponding Harmonised Commodity Description and Coding System Explanatory Notes of World Customs Organisation (WCO), AAR observes that “…the impugned product is neither a beer initially nor…

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