2019 (7) TMI 1000 - AAR - GST

Employee profit sharing agreement ruled as actionable claim under CGST section 2(1), exempt from GST liability

AAR Tamil Nadu ruled that a profit sharing agreement between an employee and shareholders constitutes an actionable claim under CGST Act section 2(1) read ... Liability of GST - Profit Sharing Agreement between the applicant as an employee and the shareholders - Actionable claims - Scope of supply - HELD THAT:- In this case, the profit sharing agreement gives the applicant a claim to the beneficial interest in the profits on the event of a strategic sale where at least 51% of paid up Equity share capital of the company is sold at a price not less than ₹ 75 or an initial public offering where the mid point of the price band as per red-herring prospeectus is not less than ₹ 75 per equity share and subsequent listing on the stock exchange - either of these events may occur or both may not, in that case, the claim is only contingent. This transaction between the applicant and the shareholders is an 'actionable claim' u/s 2(1) of CGST read with section 3 of the Transfer of Property Act, 1882. The actionable claims other than lottery, betting, gambling are activities or transactions which shall be treated neither as a supply of goods nor a supply of services and hence do not attract GST as per CGST or SGST Act - the profit sharing agreement between the applicant and various shareholders of SHA is an actionable claim and is not relating to lottery, betting and gambling and hence is covered under schedule III to CGST Act and SGST Act as neither a supply of goods nor a supply of services and hence is not taxable to CGST or SGST. ISSUES PRESENTED and CONSIDEREDThe core legal question considered in this judgment is whether the Profit Sharing Agreement (PSA) between the applicant, who is an employee and shareholder of Star Health and Allied Insurance Company Limited (SHA), and other shareholders, attracts Goods and Services Tax (GST) under the Central Goods and Service Tax Act and the Tamil Nadu Goods and Service Tax Act.ISSUE-WISE DETAILED ANALYSISRelevant Legal Framework and Precedents:The legal framework involves the interpretation of the Central Goods and Service Tax Act, specifically Schedule III, which lists activities or transactions treated neither as a supply of goods nor a supply of services. The relevant provision is:Services by an employee to the employer in the course of or in relation to his employment.Actionable claims, other than lottery, betting, and gambling.The Transfer of Property Act, 1882, defines 'actionable claim' as a claim to any debt or beneficial interest in movable property not in the possession of the claimant, recognized by Civil Courts as affording grounds for relief.Court's Interpretation and Reasoning:The Court examined whether the PSA constitutes a service provided by the applicant to the employer or an actionable claim. The Court noted that the PSA is between the shareholders and the applicant, not between the company and the applicant. Therefore, it does not fall under the employee-employer relationship exemption in Schedule III of the CGST Act.The Court further analyzed whether the PSA could be classified as an actionable claim. It determined that the PSA grants the applicant a contingent beneficial interest in profits arising from a strategic sale or IPO, which fits the definition of an actionable claim under the Transfer of Property Act.Key Evidence and Findings:The PSA is between shareholders and the applicant, not the company.The agreement acknowledges the applicant's contribution to the company's growth and outlines conditions for receiving profit shares.The applicant's entitlement is contingent upon the occurrence of specified events, such as a strategic sale or IPO.The PSA is governed by Indian law, with jurisdiction for disputes in Mumbai, indicating recognition by Civil Courts.Application of Law to Facts:The Court applied the definition of 'actionable claim' to the PSA, concluding that the applicant's contingent interest in future profits qualifies as an actionable claim. Since actionable claims, except for lottery, betting, and gambling, are not considered supplies of goods or services under Schedule III, the PSA does not attract GST.Treatment of Competing Arguments:The applicant argued that the PSA is a form of remuneration for efforts as a CMD and should be exempt under the employee-employer relationship. The Court rejected this, as the PSA is between shareholders and the applicant, not the employer. The Court focused on the nature of the claim as an actionable claim, which is not taxable under GST.Conclusions:The Court concluded that the PSA is an actionable claim and not a supply of goods or services. Therefore, it is not subject to GST under the CGST or SGST Acts.SIGNIFICANT HOLDINGSPreserve Verbatim Quotes of Crucial Legal Reasoning:'The Profit Sharing Agreement between the applicant and various shareholders of SHA is an actionable claim and is as neither a supply of goods nor a supply of services covered under Schedule III to CGST Act and SGST Act and hence is not taxable to CGST or SGST.'Core Principles Established:An agreement between shareholders and an employee that grants a contingent beneficial interest in profits qualifies as an actionable claim.Actionable claims, except for lottery, betting, and gambling, are not subject to GST under the CGST or SGST Acts.Final Determinations on Each Issue:The Court ruled that the PSA does not attract GST as it is an actionable claim, not a supply of goods or services. The ruling clarifies that agreements granting contingent beneficial interests in profits between shareholders and employees are not taxable under the GST framework if they meet the criteria of actionable claims.