India: Krishnomics On GST

Last Updated: 17 July 2017
Article by Gagan Kumar

In order to serve the nation and the community, we are putting our views on various vexed issued on GST. Please write to us, should any issue on GST is bothering you and we shall put it here for your convenience. Keep checking this spot for more answers as we shall keep it updating until Jul 31, 2017

REGISTRATION

Does a Company having central registration under the current Service Tax regime for providing services on PAN India Basis is required to take GST registration in each state from where services are provided?

The concept of Central Registration is not provided under the GST regime. Every supplier shall be liable to be registered under this Act in the State or Union territory, from where he renders taxable supply of goods or services or both, if his aggregate turnover in a financial year exceeds twenty lakh rupees.

The term "aggregate turnover" means the aggregate value of all taxable supplies (excluding the value of inward supplies on which tax is payable by a person on reverse charge basis), exempt supplies, exports of goods or services or both and inter-State supplies of persons having the same Permanent Account Number, to be computed on all India basis but excludes central tax, State tax, Union territory tax, integrated tax and cess.

Therefore, the company shall be required to get itself registered in the state from which it is providing taxable supply if its aggregate turnover is more than twenty lakhs.

If a Company does not have any office premise in the state from where it provides services then what document is required for registration?

The following are eligible Proof of Principal/Additional Place of Business:

a. For Own premises

Any document in support of the ownership of the premises like Latest Property Tax Receipt or Municipal Khata copy or copy of Electricity Bill

b. For Rented or Leased premises

A copy of the valid Rent / Lease Agreement with any document in support of the ownership of the premises of the Lessor like Latest Property Tax Receipt or Municipal Khata copy or copy of Electricity Bill

c.   For premises not covered in a & b above

A copy of the Consent Letter with any document in support of the ownership of the premises of the Consenter like Municipal Khata copy or Electricity Bill copy. For shared properties also, the same documents may be uploaded

Therefore, the case where a Company does not have any office premise in the state from where it provides services may be covered under 'C' above.

If a Company does not have any office premise in the state from where it provides services then would it qualify as a causal taxable person?

A person who occasionally undertakes transactions involving supply of goods or services or both in the course or furtherance of business, whether as principal, agent or in any other capacity, in a State or a Union territory where he has no fixed place of business shall qualify as a causal taxable person.

The term fixed place of business is not defined under the CGST Act, however the same may not relate to the existence of an Office Premise if sufficient human and technical resources are otherwise available with some degree of permanency for providing taxable supply.

If a company is in the business of execution of Project and gets a contract in a state where it doesn't have GST registration, then what is the period within which it has to apply for registration?

Every person who has to execute a project from a fixed placed of business in a state, then it shall apply for registration in every such State in which it is so liable within thirty days from the date on which it becomes liable to registration.

If however, the company occasionally undertakes transactions involving supply of goods or services or both in the course or furtherance of business in a State or a Union territory where it has no fixed place of business then, it shall apply for registration at least five days prior to the commencement of business.

CHARGEABILITY

If Goods are sold from one state to another state and does not include the scope of its installation, then which state's GST number (GSTN) is to be used?

Supply of goods, where the location of the supplier and the place of supply are in two different States, shall be treated as a supply of goods in the course of inter-State trade or commerce on which IGST shall be chargeable.

Where the supply involves movement of goods, whether by the supplier or the recipient or by any other person, the place of supply of such goods shall be the location of the goods at the time at which the movement of goods terminates for delivery to the recipient.

Since the supplier is located in one state and the movement of goods terminates in another state, the Supplier of goods shall use his GSTN and charge IGST on such a transaction.

If Goods are sold from one state to another state and the contract includes installation, then which state's GST number (GSTN) is to be used?

When a contract for supply of goods along with installation is entered, then the same may be considered as a composite supply and shall be treated as supply of goods or service considering the predominant nature of supply. The predominant nature is to be determined from the point of view of the service receiver.

If the contact involves creation of an immoveable property then the same is considered as a Works Contract under GST. The treatment thereof is explained in succeeding FAQs.

How would an Annual Maintenance Contract ("AMC") in relation to an immoveable property is chargeable to GST?

An AMC in relation to an immoveable property is considered as a works contract under GST.

The term works contract means a contract for building, construction, fabrication, completion, erection, installation, fitting out, improvement, modification, repair, maintenance, renovation, alteration or commissioning of any immovable property wherein transfer of property in goods (whether as goods or in some other form) is involved in the execution of such contract.

A work contract is deemed as supply of service under GST and the place of provision of the same is the location of a service receiver.

In case the supplier of work contract is located in other state, then IGST shall be chargeable.

How would an Annual Maintenance Contract ("AMC") in relation to an immoveable property is chargeable to GST in case the supplier is located in more than one state?

Where a supply is made from more than one establishment, whether the place of business or fixed establishment, the location of the establishment most directly concerned with the provision of the supply is treated as the location of supplier of service. The place of provision of such service is the location of a service receiver.

Therefore, depending upon the location of supplier and place of provision of service, IGST or CGST/SGST shall be charged.

If some goods are sent by a Head Office to its branch in other state for execution of an Annual Maintenance Contract ("AMC") in relation to an immoveable property, then how is it chargeable to GST?

Where a person who has obtained or is required to obtain registration in a State or Union territory in respect of an establishment, has an establishment in another State or Union territory, then such establishments shall be treated as establishments of distinct persons for the purposes of this Act. Supply of goods or services or both between distinct persons, when made in the course or furtherance of business is treated as supply even if it is made without consideration.

Therefore, the Head Office shall charge IGST on the deemed value to be determined as per valuation rules.

If a company deputes some of its employees to carry out operation of a project on permanent basis in other state, then how would GST be chargeable?

The place of supply of manpower service is the location of service receiver. Since, the supply is being provided from other state, therefore, a registration may be required by the company in such state and such GSTN shall be used for invoicing. The head office shall cross charge its branch for supply of its employees (IGST).

How would the advances received against supply of goods be chargeable?

Point of taxation under GST is provided under section 12 of CGST Act. As per this section, the supply of goods is to be taxed on earlier of the following:

  1. the date of issue of invoice by the supplier or the last date on which he required under section 31(1), to issue the invoice with respect to supply; or
  2. the date on which the supplier receives the payment with respect to the supply

Therefore, it follows that if any amount is received from a customer in advance, then GST shall be payable on the same in the month in which such amount has been received.

How would used/second-hand goods be chargeable under GST?

Rule 6(5) of the Determination of Value of Supply Rules, 2017 under GST provides that where a taxable supply is provided by a person dealing in buying and selling of second hand goods i.e. used goods as such or after such minor processing which does not change the nature of the goods and where no input tax credit has been availed on purchase of such goods the value of supply shall be the difference between the selling price and purchase price and where the value of such supply is negative it shall be ignored.

Therefore, is some processing is done on used good, then value of such processing shall not be reduced from value of supply. However, input tax credit on goods/ services used in such processing may be allowed under section 16 of CGST Act.

Would petroleum products like engine oil, lubricants be chargeable under GST?

Only five petroleum products are outside the purview of GST, namely:-

  1. Petroleum crude;
  2. High speed diesel;
  3. Motor spirit/petrol;
  4. Natural gas
  5. Aviation turbine fuel

Mineral fuels and mineral oils as well as petroleum oil extracted from such minerals as a result of distillation process are covered under GST. However, petroleum oils extracted from oil crude not covered under GST.

Is High Sea Sales taxable under GST?

As per section 7(2) of the Integrated Goods and Services Act, 2017 ("IGST"), supply of goods imported into the territory of India, till they cross the customs frontiers of India, shall be treated to be a supply of goods in the course of inter-State trade on which IGST shall be payable.

There was a confusion regarding the interpretation of the term "till" in this clause as to whether any sale of goods even before it crosses Customs Frontiers of India is taxable under GST i.e it includes a High-Seas sale as well. The CBEC has released FAQ wherein this aspect has been clarified.  

It was clarified that the High-Seas Sales shall not be taxable and once the goods are cleared at the Customs Frontiers of India, IGST shall be levied as a Customs Duty. Therefore, High sea sales shall continue to be non-taxable under the GST regime as well.

Would Free supply be taxable under GST& whether an invoice is required to be issued if it is not taxable?  

As per section 7(a) of the CGST, supply includes all forms of supply of goods or services or both all forms of supply of goods or services or both such as sale, transfer, barter, exchange, licence, rental, lease or disposal made or agreed to be made for a consideration by a person in the course or furtherance of business.

The cases of supply without consideration have been specifically mentioned under Schedule I read with clause (c) of Section 7 of CGST. Supply of goods or services or both without consideration is taxable only in case of related persons.

Therefore, it may be inferred that free supply between unrelated parties shall not be taxable and delivery shall be affected through a challan only. It may also be noted that Free Supply being non-taxable, no input credit shall be available thereon.

How would free replacement under warranty period be treated and what would be treatment if free replacement is made without warranty?

  • Free replacement under warranty period-

A free replacement under warranty period is not liable to GST not because it is free but because the price for the replacement is built into the price of the equipment originally supplied and tax has already been paid. However, an invoice shall be issued for the same giving reference to the original invoice in which payment of warranty is recovered.

  • Free replacement without warranty period and no charge-

Without warranty period, free replacement would fall under the category of Free Supply.  Please read above FAQ for treatment of free supply.

How would renting of immoveable property be treated if the landlord and immoveable property are situated in a same state? (Suppose Tenant in Delhi and property/landlord in Gurgaon)

The place of provision of rental service is the location of immoveable property. Since, the landlord and the immoveable property would be located outside Delhi i.e. Gurgaon, it would be considered as intra-state sale on which Haryana GST and CGST shall be payable by Landlord. Delhi office of Tenant would not be able to claim its input credit unless it is registered as an ISD in Haryana. Once it is registered as ISD, landlord may raise invoice on ISD and ISD shall transfer the credit as IGST to Delhi Office.

How would renting of immoveable property be treated if the landlord and immoveable property are situated in different states? (Suppose Landlord in Delhi and property in Gurgaon)

The place of supply of rental service is the location of immoveable property. For determining whether IGST or CGST/SGST shall be payable, the location of the supplier of services needs to be determined. The location of supplier means:

  1. where a supply is made from a place of business for which the registration has been obtained, the location of such place of business;
  2. where a supply is made from a place other than the place of business for which registration has been obtained (a fixed establishment elsewhere), the location of such fixed establishment;
  3. where a supply is made from more than one establishment, whether the place of business or fixed establishment, the location of the establishment most directly concerned with the provision of the supply; and
  4. in absence of such places, the location of the usual place of residence of the supplier;

From the bare perusal of this definition, it is important to determine as to whether the rental service is made from a place of business for which registration has been obtained or it is made from a place other than the place of business for which registration has been obtained i.e a fixed establishment elsewhere.

The term place of business has been defined as an inclusive definition to include

  1. a place from where the business is ordinarily carried on, and includes a warehouse, a godown or any other place where a taxable person stores his goods, supplies or receives goods or services or both; or
  2. a place where a taxable person maintains his books of account; or
  3. a place where a taxable person is engaged in business through an agent, by whatever name called;

Therefore, in can be inferred that in case the renting of property is the business of a person and all decision in relation to the same are taken from there, then a view can be taken that the location of supplier is such a place. And considering that the landlord is having his place of business in Delhi and property is located in Gurgaon, he shall pay IGST using his Delhi GSTN.

It would be important to see the meaning of the term fixed establishment to see is the second clause of the above definition of location of supplier of service is applicable. A fixed establishment means a place (other than the registered place of business) which is characterized by a sufficient degree of permanence and suitable structure in terms of human and technical resources to supply services, or to receive and use services for its own needs.

Another plausible would be that if the renting of property is not the business of a person, then the location of property may qualify as a fixed establishment i.e a place other than the place of business for which registration has been obtained.

And considering that the landlord is having his place of business in Delhi and property is located in Gurgaon, the location of supplier shall also be Gurgaon and CGST/SGST shall be payable after taking Haryana GSTN.

It is however, clarified that since the property is located in Haryana and whether the location of supplier is Delhi or Haryana, IGST or CGST/SGST shall accrue to the Haryana Government considering the fact that GST is a destination based-tax.

INPUT CREDIT

How wound a trader claim the credit of excise duty paid on stock lying unsold/unused on 1st July, 2017?

Where a person is not registered under Central Excise Act, 1944 and is liable to be registered under GST, the claim of credit of the above mentioned goods shall be governed by section 140(3) of the CGST Act. This section provides that the credit in relation to invoices or other prescribed documents which were issued not earlier than twelve months immediately preceding the appointed day shall be available to a registered person, who was not liable to be registered under the existing law, or who was engaged in the manufacture of exempted goods or provision of exempted services, or who was providing works contract service and was availing of the benefit of notification No. 26/2012—Service Tax, dated the 20th June, 2012 or a first stage dealer or a second stage dealer or a registered importer or a depot of a manufacturer, shall be entitled to take, in his electronic credit ledger, credit of eligible duties in respect of inputs held in stock and inputs contained in semi-finished or finished goods held in stock on the appointed day.

It also provides that where a registered person, other than a manufacturer or a supplier of services, is not in possession of an invoice or any other documents evidencing payment of duty in respect of inputs, then, such registered person shall, be eligible to claim a deemed credit to be computed as per the input credit rules.

Whether Input credit for Plant & Machinery is available under GST?

Section 16 of the CGST Act provides that, every registered person shall, 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.

Section 17 of the CGST Act provides for certain circumstances in which input tax credit shall not be available. Plant and machinery is not mentioned under section 17. However, the expression 'plant and machinery' has been defined under this section as  plant and machinery means apparatus, equipment, and machinery fixed to earth by foundation or structural support that are used for making outward supply of goods or services or both and includes such foundation and structural supports but excludes-

  1. land, building or any other civil structures
  2. telecommunication towers; and
  3. pipelines laid outside the factory premises."

Therefore, in view of the above, it is clear that input credit on goods and services utilised for installation of plant and machinery shall be allowed if the plant and machinery is to be utilised for furtherance of business.

A company is having corporate office at Delhi and Warehouse at Gurgaon; it has taken GSTN at Gurgaon address as business operations are conducted from there. Is it required to take separate registration for Delhi Office for claiming input credit of GST invoices received at the Corporate Office? How would it utilize such credit as Corporate Office doesn't provide any outward supply?

For the purpose of transferring credit in such cases the concept of Input Service Distributor (ISD) is provided under GST. ISD is an office of the supplier of goods or services or both where a document (like invoice) of services attributable to other locations are received (since they might be registered separately). Since the services relate to other locations the corresponding credit should be transferred to such locations (having separate registrations) as services are supplied from there.

The Delhi Corporate Office can get itself registered as ISD and transfer credit of input received to the Gurgaon Office. It has been provided that the credit of IGST can be transferred as IGST and the credit of CGST/SGST as IGST to the Gurgaon Office.

REFUND

Whether Refund of excess credit due to output tax being lower then input tax be available under GST?

Section 54(3) of CGST Act provides that a registered person may claim a refund of unutilised input tax credit at the end of any tax period where the credit has accumulated on account of rate of tax on inputs being higher than rate of tax on output supplies

RETURNS

  1. What are the returns to be filed under GST?
Brief overview of Return Relevant Form      Periodicity Due Date
Outward Supplies Return Seller/e-commerce operator would be required to file invoice wise details of outward supply GSTR - 1       Monthly 10th of the succeeding month
  •  
Details of outward supplies as added, corrected or deleted by the recipient
GSTR – 1A       Monthly Auto populated
Inward Supplies Return Seller/Ecommerce operator would be required to file invoice details of inward supply GSTR – 2       Monthly 15th of the succeeding month
Details Furnished by Supplier Details of inward supplier made available to the recipient on the basis of Form GSTR – 1 GSTR – 2A       Monthly Auto populated
GST Return (Reconciliation) Seller would be required to file total taxable value and tax payable on outward and inward supply GSTR - 3       Monthly 20th of the succeeding month
Annual Return Seller/E-commerce operator is required to file details of expenditure and income along with reconciliation of GST returns with financials. GSTR – 9      Annual 31st December of the Succeeding Year

What is the Time Limit for Rectification of returns?

Outward supply (GSTR-1)/ Inward supply (GSTR-2)/ Monthly return (GSTR-3) can be revised/rectified on discovery of any error or omission on earlier of the following dates:

Date of filing of Annual return (which has to be filed by 31st December of the following financial year) or

Date of filing of monthly return of the month of 'September' (to be filed by 20th of the following month) following the end of the financial year to which such details pertain.

Whether invoice wise detail of unregistered dealer is to be mentioned under GST return?

If an inter-state sale is made by the supplier to unregistered buyer and the value of invoice(s) is greater than Rs. 2,50,000/- then invoice wise detail is required to be furnished. However, if the value of invoice(s) is less than Rs. 2,50,000/- in case of inter-state sale and in case of intra-state (irrespective of the value of goods), the consolidated value of sales to unregistered dealer shall be furnished.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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