A synopsis of key recent developments under GST

A

Legislative Amendments -GST Act

1

Self-Certification of GSTR-9 and 9C

● S. 110 & 111 of Finance Act, 2021 to come into force w.e.f. 01 Aug 2021.
● S. 35(5) has been omitted and S. 44 is substituted to dispense with the requirement of audit & certification by the CA/CMA and allow the taxpayers to file self-certified reconciliation statement.

Self-certification will apply for FY 2020-21 also as clarified by press release dt 28 May 2021

29/2021– CT dt 30 July 2021

B

GST Notifications

2

Rule 80:
Exemption from GSTR-9C

● Taxpayers having aggregate turnover in a FY up to INR 5 Crores shall be exempt from filing of self-certified reconciliation statement in GSTR-9C.
● ‘Part B-Certification’ has been deleted from Form GSTR 9C

Relief for small taxpayers having AATO upto 5 Cr

30/2021 – CT dt 30 July 2021

3

Exemption from GSTR-9

Taxpayers having aggregate turnover up to INR 2 Crores in FY 2020-21 shall be exempt from filing of annual return for the said year.

Relief for small taxpayers having AATO upto 2 Cr

31/2021 – CT dt 30 July 2021

C

Circular/Orders GST

4

 No Update

No circulars/orders have been issued during the update period

D

The Supreme Court Rulings

5

Apex Court:
Interplay between IGST export refund vs Duty Drawback

● Issue: Whether refund of IGST paid on exports of goods can be denied where the rates of higher and lower duty drawback claimed are the same?
● Recap: Guj HC in Dec'20 held that DBK rates being the same, it represented only the 'Customs' elements, which did not get subsumed in the GST and thus, assessee cannot be said to have availed double benefit.
● Now SC dismissed the SLP filed by Dept against Guj HC's order and affirmed HC’s direction to sanction IGST refund.

● Welcome ruling which settles the controversy wrt interplay bw 'Refunds under GST' vis-a-vis 'DBK under Customs'.
● Earlier GJ HC in case of Amit Cotton Industries also passed similar judgement

E

Important High Court Rulings under GST

6

Telangana HC:
Validity of tax demanded before issuance of SCN

Issue: Petitioner was advised before issue of SCN to pay the amount availed as ITC at the stage of summons itself without following due procedure u/s 74.
Held that: No tax demand can be issued or raised when the investigation is still in progress. The respondents cannot be allowed to put the cart before the horse and collect any tax, interest or penalty before they determine, in an enquiry, after putting the petitioner/assessee of notice, and that their action is wholly arbitrary and without jurisdiction. Writ Petition is allowed

Good to refer where authorities direct for making payment when the investigations are underway

7

Allahabad HC:
Blocking ITC over and above the ECL balance

Issue: Validity of ITC blocking over and above the amount available on the date of the order passed u/r 86A. Whether Rules 86A is a recovery provision?
Held that:
● Rule 86A is not a recovery provision but only a provision to secure the interest of revenue.
● If there is no positive credit balance in ECL, that order u/r 86A would be read to create a lien upto limit mentioned. As and when the credit entries arise, the lien would attach to those credit entries upto the limit set by the order.

The ruling appears to be inconsistent with the whole schema of Rule 86A, which is to restrict ITC debit from the balance which is available in the ledger.

8

Kerala HC:
Special relief to allow ITC to the customers

Issue: Petitioner was not able to upload the returns for July'17 to Mar'18 due to glitches. This resulting in disallowance of ITC to petitioner's customers.
HC directed: the Appellant to pay tax along with interest thru DRC-03 considering technical limitation in portal. Also, the HC specifically directed that ITC shall not be denied on the ground that the transaction is not reflected in GSTR-2A.

HC provided special relief by rescuing the petitioner's customers from vagaries of ITC mismatch due to not getting invoices in their 2A.

9

Madras HC:
Parallel proceedings by DGGI & State Tax Authorities

Held that it needs to be established that subject matter is one and the same and that mere pendency of proceedings before the State authorities is not a ground to restrain the Central authorities from issuing summons and conduct investigation regarding certain allegations.
Therefore, the CGST authorities have been directed to proceed as per law.

The Court emphasized the fact that the subject matter is one and the same should be established. Benefit of S. 6(2)(b) cannot be claimed in all circumstances.

KUPPAN GOUNDER P.G. NATARAJAN VERSUS DIRECTORATE GENERAL OF GST INTELLIGENCE, NEW DELHI [2021 (8) TMI 136 - MADRAS HIGH COURT]

F

GSTAT Ruling

10

Tribunal is yet to be constituted

G

Relevant AARs under GST

11

Gujarat AAR:
ITC restricted on canteen charges and GST not leviable on recovery

Que: Whether ITC is available on GST charged by canteen contractor and whether GST is applicable on nominal recovery from employees by the company?
Ruling:
a) ITC is blocked u/s 17(5)(b)(i) as the proviso allowing ITC where obligatory in nature, is not applicable to said sub-clause.
b) Part amount collected by employer is paid to the canteen service provider, no profit is retained by the employer and such activity is carried out without consideration and therefore, on the amount recovered from employees towards canteen facility, GST is not leviable.

1) On all employee recoveries made as pass-through, Companies may consider obtaining Adv Ruling (preferably from GJ & KA) to settle potential disputes as the same will have binding effect on officer.
2) Restricting ITC on F&B even when obligatory under law is contrary to the intention of the amendment made in 17(5).

1) IN RE: M/S. TATA MOTORS LTD [2021 (8) TMI 735 - AUTHORITY FOR ADVANCE RULING, GUJARAT]

2) IN RE: M/S. DISHMAN CARBOGEN AMCIS LTD. [2021 (8) TMI 836 - AUTHORITY FOR ADVANCE RULING, GUJARAT]

12

Karnataka AAR:
GST on lunch and refreshments to employees

Que: Whether provision of subsidized lunch and refreshments to employees through contractors is to be treated as supply?
Ruling: Applicant merely pays part-consideration towards cost of lunch and refreshments to its employees through contractor and the said activity doesn’t constitute Supply u/s 7 of the CGST Act.

The said ruling is largely in line with the previously mentioned GJ AAR.

IN RE: M/S. DAKSHINA KANNADA CO-OP. MILK PRODUCERS UNION LTD [2021 (8) TMI 352 - AUTHORITY FOR ADVANCE RULINGS, KARNATAKA]

13

Guj AAR:
ITC eligibility on several items

Que: ITC eligibility on several items for the purpose of constructing New Administrative Building.
Ruling:
● ITC is admissible on New Locker Cabinet and Generator.
● ITC is blocked u/s 17(5)(c) for: Central Air Conditioning Plant; Lift; Electrical Fittings; Fire Safety Extinguishers, Roof Solar Plant.
● ITC is blocked u/s 17(5)(d) for: Architect Service and Interior Decorator fees.

This ruling would be relevant for Companies setting up new office. Given the ITC is dependent upon movability and Machinery test, the same is likely to be heavily contested under GST, like pre-GST regime.

IN RE: M/S. THE VARACHHA CO. OP. BANK LTD. [2021 (8) TMI 736 - AUTHORITY FOR ADVANCE RULING, GUJARAT]

14

Gujarat AAR:
ITC on air-conditioning and ventilation system not available

Que: Whether ITC is admissible on Air-conditioning and Cooling System and Ventilation System including installation and commissioning services?
Held that: 
● The air conditioning and cooling system is not machine as a whole.
● Applying the test of permanency, it does not merit classification as movable property;
● Supply shall be classifiable under works contract service. ITC shall not be allowed as this is blocked credit u/s 17(5)(c) of CGST Act.

This ruling would be relevant for Companies setting up new factories/units. Given the ITC is dependent upon movability and Machinery test, the same is likely to be heavily contested under GST, like pre-GST regime.

IN RE: M/S. WAGO PRIVATE LIMITED [2021 (8) TMI 740 - AUTHORITY FOR ADVANCE RULING, GUJARAT]

15

Karnataka AAR:
Taxability of e-vouchers

Issue: Taxability of various types of vouchers by the applicant who acts as an intermediary for buying and supplying of e-vouchers.
Findings & Ruling:
● These payment instruments cannot be considered as 'money' or 'actionable claim'
●  Applicant is involved in trading of vouchers, for a consideration in the course of business. Thus it amounts to supply as per S. 7(1)(a) of the Act.
●  e-vouchers are taxable as goods as per residual entry no. 453 of Goods Tariff at the rate of 18% GST.
●  Face value of the e vouchers is the value for the purpose of paying GST
●  Time of supply would be governed by residuary S.12(5)(a) - where it is not possible to determine the ToS, it shall be the date on which return is to be filed; or the date on which the tax is paid.

Earlier, TN AAAR in case of Kalyan Jewellers ruled that 'Vouchers/ PPIs/Gift cards' per se are neither goods nor services but “a means/instrument for payment of consideration”.

However, both rulings cannot be compared as such since the applicant himself in instant case is involved in trading of voucher.

IN RE: M/S. PREMIER SALES PROMOTION PVT. LTD [2021 (8) TMI 350 - AUTHORITY FOR ADVANCE RULINGS, KARNATAKA]

16

Tamil Nadu AAR:
ITC on leasehold land

Que: Whether INOX would be entitled to avail and utilize ITC of GST charged by the lessor on the transfer of leasehold rights?
Ruling: The 'land' leased is not a 'Plant and Machinery'. ITC cannot be claimed as per the restriction placed u/s 17(5)(d).

The authority failed to consider the fact, 'Land' per se is not used forconstruction of immovable property rather the property is constructed ona part of land

IN RE: INOX AIR PRODUCTS PVT. LTD. [2021 (8) TMI 730 - AUTHORITY FOR ADVANCE RULING, TAMILNADU]

17

AP AAR:
Sale of business without transfer of liabilities

Que: Whether the benefit of exemption is applicable on the business transfer undertaken without passing of liabilities and employees?
Ruling: The transaction of ‘transfer of business’ in the instant case does not fit in the definition of a ‘going concern’ in the context of exclusion of liabilities and thus exemption entry is not applicable to the present case.

Reliance was placed on SC ruling in ARC Holding, if the company is sold as a ‘going concern’, then along with the assets, if there are any liabilities relevant to the business, the liabilities too are transferred

IN RE: M/S. SCV SKY VISION [2021 (8) TMI 523 - AUTHORITY FOR ADVANCE RULING, ANDHRA PRADESH]

18

AP AAR:
ITC eligibility in the hands of sub-contractor

Held: AAR holds that ITC in respect of products purchased by Applicant (a sub-contractor) on its own account for use in furtherance of its business is not available u/s 17(5)(d) of Act.

AAR failed to consider the exception in S. 17(5(c), where ITC is allowed on input service for further supply of works contract service

IN RE: M/S. KARTHIKEYA PROJECTS [2021 (8) TMI 532 - AUTHORITY FOR ADVANCE RULING, ANDHRA PRADESH]

19

Karnataka AAR:
Classification of Tissue Paper

Held that the tissue papers fall under other paper and paperboard not containing fibres (18%), not under uncoated paper and paperboard (12%). Hence the GST rate of 12% is not applicable to them.

Relevant for companies dealing in such goods.

H

Service Tax & CE Rulings

20

CESTAT Chennai
Liquidation charges collected not liable to service tax

Issue: Whether Service Tax is payable on liquidated damages recovered for not adhering to time limits mentioned in the contract?
Observed: CESTAT observed that the agreement was not entered with the intention of the Appellant to impose any penalty upon the other party nor the other party to get penalized. The same cannot be said to be towards toleration of the defaulting party.
Held: Service tax cannot be levied on such damages as the same would not be covered in the 'Declared Services' u/s 66E(e).

Delhi CESTAT recently in Ruchi Soya also pronounced similar ruling. It is good to see favorable rulings coming in on this perennial issue. The ratio of these rulings would apply in GST regime also.

I

State VAT Rulings

21

NA

No such major highlights

J

Other Updates

22

Road to RoDTEP
- better late than never!

The New Remission of Duties and Taxes on Exported Products (RoDTEP) Scheme and Rates announced by the Govt on 17th Aug in place of the MEIS Scheme (Effective from 1.1.2021)

The rates announced appear to be on a lower side and not meeting the industry expectation.

Notification No. 19/2015-2020 dated August 17, 2021

23

State of Haryana:
New incentive scheme in lieu of net SGST

● Industries and Commerce Dept, Govt of Haryana has recently issued Notification to formulate a scheme for grant of 'Investment Subsidy in lieu of Net SGST'.
● Units entitled for the benefit will receive incentive equivalent to the specified % of Net SGST (i.e. SGST amount paid thru cash ledger), subject to max quantum of prescribed % of Fixed capital investment.

This should certainly boost entities to make new investments in the State of Haryana.

Notification No. 25/05/2020-4IB-I dated 29 July 2021