TaxTMI 
TaxTMI 
2026 (3) TMI 1672
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....e is yes, whether GST is applicable on the nominal amount to be deducted from the salaries of employees. b. Whether input tax credit (ITC) is available to the Applicant on GST charged by the Canteen Service Providers for providing the catering services? If yes, whether ITC is restricted to the extent of cost borne by the Applicant only? Q2: Whether GST is applicable on payment of salary in lieu of notice pay from the full and final settlement of the employees leaving the Company without completing or serving the complete notice period as specified in the Appointment Letter? At the outset, we would like to make it clear that the provisions of both the CGST Act and the MGST Act are the same except for certain provisions. Therefore, unless a mention is specifically made to any dissimilar provisions, a reference to the CGST Act would also mean a reference to the same provision under the MGST Act. Further to the earlier, henceforth for the purposes of this Advance Ruling, the expression 'GST Act' would mean CGST Act and MGST Act. 1. FACTS AND CONTENTION - AS PER THE APPLICANT: 1.1 The Applicant is a company incorporated under the provisions of the Companies Ac....
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.... the factory and hence will be treated as the occupier. 1.6 Since the factory premises of the Applicant is located far away from local city limits and considering the time and efforts required for arranging food on daily basis, the Applicant had decided to provide canteen facility to its employees by engaging the Canteen Service Provider to comply with the statutory requirement laid down by the Factories Act. 1.7 To cater to the above-mentioned obligation, the Applicant has set up the canteen in a demarcated area within its factory premises wherein tables, chairs, utensils, washrooms, wash basins, storage rooms for keeping the cooked food, washing the utensils etc. have been provided and maintained by the Applicant. 1.8 The Applicant has entered in contractual relationship with the Canteen Service Provider with separate roles and responsibilities. 1.9 As per the contractual arrangement, it will be the Canteen Service Provider's responsibility to bring ready-to-eat food to the factory for immediate consumption by the Applicant's employees Additionally, he is also made responsible for subsequent deployment of trained staff for serving food and fulfilment of all the statut....
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....letter highlighting various terms and conditions of employment such as job band, designation, date of appointment, place of posting etc. and the salary structure. 1.15 One of the terms is in relation to the resignation of an employee; which mandates that a specified notice period is to be served before the employment with the Applicant ceases. For a shorter notice period, the condition for deduction of notice pay is included in the appointment letter and the Applicant's policy. 1.16. We wish to share the relevant extract of the appointment letter wherein it is mandated on the part of its employee to serve the notice period. During the probation period, the service can be terminated by either party by giving one month notice or payment of salary in lieu of shortfall in the notice period. On successful completion of the probation period the notice period will be two months on either side, or payment of salary in lieu of shortfall in the notice period, if mutually agreed. 1.17 Further, we wish to highlight Applicant's policy with respect to Notice pay: Notice Pay Policy - a. For Resignation of Employees during Probation period - The notice period wi....
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...."CGST Act") 2.3 In support of the above argument, the applicant wishes to draw the attention of your good self towards the below-highlighted paragraphs of the 47th GST Council Meeting held in June 2022, which state: "2.3.2 Doubts have also been raised regarding the taxability of various perquisites provided by the employer to its employees in terms of contractual agreement entered into between the employer and the employee. 2.4 Law Committee in its meeting dated 11.04.2022 deliberated on the issue and recommended that the issue may be clarified through a circular that - i. proviso after sub-clause (iii) of section 17(5)(b) of CGST Act is applicable for all sub-clauses (i), (ii) & (iii) of section 17(5)(b); ii. "leasing" referred in sub-clause (i) of clause (b) of sub-section (5) of section 17 refers to leasing of motor vehicles, vessels and aircrafts only and not to leasing of any other items; iii. supply by the employer to the employee in terms of contractual agreement entered into between the employer and the employee, will not be subjected to GST [this aspect was earlier made known to the public through press release dated 10.07.20....
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....by employee to employer provided they are in the course of or in relation to employment. 2.Any perquisites provided by the employer to its employees in terms of contractual agreement entered into between the employer and the employee are in lieu of the services provided by employee to the employer in relation to his employment. It follows therefrom that perquisites provided by the employer to the employee in terms of contractual agreement entered into between the employer and the employee, will not be subjected to GST when the same are provided in terms of the contract between the employer and employee." 2.8 In the present case, it is submitted that the Applicant provides the canteen facility in terms of the contractual agreement entered into between the employer and employee. The contractual agreement specifically provides for the availment of benefits and allowances as per the Company's policy, which, apart from other benefits, also provides canteen services to employees. In view of this, the said transaction should not be treated as a supply as per Section 7 of the CGST Act, read with Schedule III. Hence, GST shall not be leviable on the recovery of a nominal amount ....
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....welfare in industrial establishments across Maharashtra. 2.13 The provisions of the Maharashtra Factories Rules, 1963, make it unequivocally clear that the establishment and operation of canteen facilities in factories employing more than 250 workers is not merely a matter of administrative discretion, but a statutory mandate. The Rules comprehensively regulate not only the physical standards and hygiene of the canteen premises but also the manner in which food and other items are to be provided to workers, specifically requiring that such services be rendered on a non-profit basis, with only limited exceptions for co-operative societies. Availment of credit on canteen services is not restricted under section 17(5) of the CGST Act when the employer is under a mandatory obligation to provide such services. 2.14 Applicant wishes to draw the attention of your good office towards Section 17(5) of the CGST Act, 2017, which generally restricts ITC on specific goods and services, including food and beverages. However, an important exception exists where these services are mandatorily provided by an employer to employees under prevailing laws. This aspect is particularly relevant ....
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....tion specifies that the proviso applies to the entirety of clause (b) of Section 17(5). It further elucidates that input tax credit on food and beverages, outdoor catering, health services, and other similar supplies referenced in Section 17(5) will not face restriction, on the condition that these supplies are obligatory for employers to provide to employees under current law. The pertinent paragraph of the Circular is provided below: "Q3. Whether the proviso at the end of clause (b) of sub-section (5) of section 17 of the CGST Act is applicable to the entire clause (b) or the said proviso is applicable only to sub-clause (iii) of clause (b)? 1. Vide the Central Goods and Service Tax (Amendment Act) 2018, clause (b) of sub-section (5) of section 17 of the CGST Act was substituted with effect from 01.02.2019. After the said substitution, the proviso after sub-clause (iii) of clause (b) of sub-section (5) of section 17 of the CGST Act provides as under: "Provided that the input tax credit in respect of such goods or services or both shall available, where it is obligatory for an employer to provide the same to its employees under any law for the time being....
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....eves that the following criteria, inter alia, plays a crucial role to determine the GST implications on provision of such a facility: • There shall be a legal intention of both the parties to the contract to supply and receive the goods or services or both. The absence of such intention would not amount to Supply within a meaning of CGST Act, 2017; • It should involve quid pro quo-viz., the supply transaction requires something in return of equivalent value, which the person supplying will obtain, which may be in monetary terms/ in any other form except in cases of deeming provision as specified in Schedule 1; and • The Supply of goods or services or both shall be effected by a person in the course or furtherance of business. • Provision of canteen facility to the employees only due to a statutory obligation and there is no legal intention to provide any service 2.22 The Applicant wishes to reiterate the facts that they provide a demarcated space for canteen facility, as mandated under the provisions of the Factories Act, 1948, to its employees for eating the food during the specified time i.e. lunch and dinner break. To comply....
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....le reciprocal obligations. If something has been used, but there was no agreement for its supply between the relevant parties, any payment subsequently received by the aggrieved party is not consideration for supply. The receipt of payment is not premised on the enforcement of reciprocal obligations between parties and cannot be linked to a supply for the purpose of levying GST. Hence, the deduction in employees' salary towards the food availed by the employees made by the Applicant would constitute a transaction in money between the Applicant and its employees and would not attain a character of a consideration in the absence of quid pro quo. 2.28 Also, the Applicant wishes to place reliance on the judgement of Bombay High Court in the case of Bai Mamubai Trust, Vithaldas Laxmidas Bhatia, Smt. Indu Vithaldas Bhatia vs. Suchitra", has held that for GST to be payable on any payment, there must be the necessary quality of reciprocity to make it a 'supply'. 2.29 In the instant case, the Applicant deducts a nominal amount from the employee's salary towards the cost of services availed by them from the canteen service providers and without any commercial objective. Based on the ab....
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....h service is primarily for personal use or consumption of any employee. When the company has borne the cost of canteen and not recovered from the employees, then in that case, it cannot be treated as such canteen service is primarily for personal use or consumption of employee and accordingly, CENVAT credit is allowed. Similar view was upheld by the Hon'ble High Court in the case of Cema Electric Lighting Products India Private Limited Vs. CCE reported in 2015 (37) STR 718 (Guj.). 2.35 We wish to also refer the judicial precedent passed in the case of Ultratech Cement Limited Vs. CCE, Nagpur by the Hon'ble High Court of Bombay, wherein it was held that the credit is not admissible to the manufacturer on the part of cost born by worker and proportionate credit embedded in the cost of food recovered from the employees, needs to be reversed. It may be noted that the said decision was also referred to by this Hon'ble AAR in the Tata Motors Limited Ruling while answering the question pertaining to ITC available to the Applicant in the said case. The relevant portion of the said Ruling is reproduced below: 5.4 The last question raised by the applicant is if ITC is availabl....
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....dered as a "Supply of Service" by the Applicant under the provisions of Section 7 of Central Goods and Service Tax Act, 2017 and Maharashtra Goods and Service Tax Act, 2017. 3.2 Taxability of 'canteen facility' provided to employees: At the outset, taxability of 'Canteen Facility' need to be determined which can be analysed through the Charging section of the statue i.e. Section 9 of the CGST Act 2017 read with Section 7 of the CGST Act 2017 i.e. scope of supply, which lays two important tests discussed hereunder: 1. Test-1: Whether 'Canteen Facility' provided by employer to employee is in course or furtherance of business? Analysis: The phrase in course or furtherance of business is a very vide term and has not been defined in the CGST Act 2017. But the word business has been defined under Section 2(17) of CGST Act, 2017, which within its scope has almost every commercial activity. The definition starts with the words "Business includes" i.e. it is an open-ended definition and not an exhaustive which covers any trade, commerce, manufacture, profession, vocation, adventure, wager or any other similar activity. Further, clause (b) of Sec 2(17) widens the scop....
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..... 3.4 Reference to Appellate Authority of Advance Ruling-Kerala The applicant to advance ruling being aggrieved with the order of AAR, preferred an appeal to Appellate Authority for Advance Ruling, Kerala (in short "AAAR") wherein AAAR vide in Caltech Polymers (P.) Ltd (Order No. CT/7726/2018-C3 dtd 25.09.2018) upheld the order of AAR, and held that supply of food items to the employees for consideration run by the company would come under definition of "supply" and would be taxable under GST. 3.5 Reference Case law: Karnataka AAR in the case of M/s Federal Mogul Goetze India Ltd. dtd 29.11.2022. The gist of the judgment is reproduce below:- "The subsidized deduction made by the applicant from the employees who are availing food in the factory, would be considered towards "Supply" of canteen service by the applicant under the provisions of Section 7 of the CGST/KGST Act 2017. GST is liable to be paid by the applicant on the value of the said supply to be determined under Rule 30 or 31 of the CGST Act 2017." Further, reference is drawn to the order issued under Advance Ruling No. 107/AAR/2023 dated 05.09.2023 issued by the Authority for the Advance Ruling,....
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....ite' is a non cash benefit attached to an office or position which is in addition to salary or wages. Generally, such perquisites being a part of the salary or Cost to Company of the employee are free of cost i.e. the employee does not pay anything additional for a perquisite. 7.10 A combined reading of the Circular and the term 'perquisite', we find that the intention of the Circular is to clarify that tax is not applicable on perquisite which is part of the employee agreement and which may be free of cost for the employees Accordingly, in case where a recovery is made against a supply, even if it is subsidised, the same will be subjected to tax. We find that the benefit of the non levy of GST could be extended only to the extent of the consideration being borne by the Applicant out of the total cost for supply of the food/beverages, but not to the extent of the consideration being collected at the subsidized rates, by the Applicant from their employees. Thus, we hold that GST is to be levied on the amount recovered be the Applicant from the employees towards canteen provision. ........." 3.6 If such services provided without consideration: In terms o....
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.... the input tax credit in respect of such goods or services or both shall be available, where it is obligatory for an employer to provide the same to its employees under any law for the time being in force. (c) ........ " 3.8 As per clarification detailed in (3) of S. No. 3 of Circular No. 172/04/2022-GST, dated 6-7-2022, it is clarified that the proviso after sub-clause (iii) of clause (b) of sub-section (5) of section 17 of the CGST Act is applicable to the whole of clause (b) of sub-section (5) of section 17 of the CGST Act. The gist of of the S. No. 3 of the Circular is detailed below:- S.No. Issue Clarification Clarification on various issues of section 17(5) of the CGST Act 3. Whether the proviso at the end of clause (b) of sub-section (5) of section 17 of the CGST Act is applicable to the entire clause (b) or the said proviso is applicable only to sub-clause (iii) of clause (b)? 1. Vide the Central Goods and Service Tax (Amendment Act) 2018, clause (b) of sub-section (5) of section 17 of the CGST Act was substituted with effect from 01.02.2019. After the said substitution, the proviso after sub-clause (iii) of clause (b) of sub-section (5) of ....
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....he employment before the minimum agreed period 7.5 An employer carries out an elaborate selection process and incurs expenditure in recruiting an employee, invests in his training and makes him a part of the organization, privy to its processes and business secrets in the expectation that the recruited employee would work for the organization for a certain minimum period. Premature leaving of the employment results in disruption of work and an undesirable situation. The provisions for forfeiture of salary or recovery of bond amount in the event of the employee leaving the employment before the minimum agreed period are incorporated in the employment contract to discourage non-serious candidates from taking up employment. The said amounts are recovered by the employer not as a consideration for tolerating the act of such premature quitting of employment but as penalties for dissuading the non-serious employees from taking up employment and to discourage and deter such a situation. Further, the employee does not get anything in return from the employer against payment of such amounts. Therefore, such amounts recovered by the employer are not taxable as consideration for the servic....
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....) Such canteen facility is set up by the Applicant out of the mandate laid down by the Factories Act, 1948. (6) As per the arrangement, it would be the Canteen Service Provider's responsibility to bring ready to-eat food to the factory for immediate consumption by the Applicant's employees. (7) Every employee who wishes to avail or discontinue the food facility shall give a prior notice to the Applicant as per the timelines provided for in the Personnel Policy. Thereafter, on a monthly basis, a fixed amount of Rs. 500/- is deducted from his salary on account of food provided to the employee from the canteen irrespective of the actual monthly cost of food plate. The balance monthly cost of the food plate is borne by the Applicant. Thus, it can be said that the Canteen facility has been provided to the Applicant's employee only on account of employer-employee relationship i.e. the existence of an employer-employee relationship is vital for providing as well as availing the said canteen facility. 5.3 Taxation of recovery made for provision of canteen services provided to the Employees 5.3.1 In order to provide the said canteen facility, the Applicant has engage....
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....ether provision of canteen facility can be said to be 'in the course or furtherance of business'. The definition of 'business', as defined in Section 2(17) of the CGST Act 2017 is as follows: "business" includes- (a) any trade, commerce, manufacture, profession, vocation, adventure, wager or any other similar activity, whether or not it is for a pecuniary benefit: (b) any activity or transaction in connection with or incidents or ancillary to sub-clause (a); (c) any activity or transaction in the nature of sub-clause (a), whether or not there is volume, frequency, continuity or regularity of such transaction; ..... This definition is an inclusive definition wherein various aspects have been listed in the clauses that would be included in 'business'. Clause '(a)' of this definition mentions various activities like trade, commerce, manufacture, profession, vocation, adventure, wages or any other similar activity. Thus, this clause covers these activities or any other similar activities. The last phrase 'whether or not it is for a pecuniary benefit' widens the scope of business to include non-profit activities. Clause (b) mentions tha....
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.... services, falls within the definition of "business". 5.3.4 The term 'consideration' has been defined in Section 2(31) of the CGST Act, 2017 which is provided below: 'consideration' in relation to the supply of goods or services or both includes, (a) any payment made or to be made, whether in money or otherwise, in respect of, in response to, or for the inducement of the supply of goods or services or both, whether by the recipient or by any other person but shall not include any subsidy given by the Central Government or a State Government; (b) the monetary value of any act or forbearance, in respect of, in response to, or for the inducement of the supply of goods or services or both, whether by the recipient or by any other person but shall not include any subsidy given by the Central Government or a State Government. Provided that a deposit given in respect of the supply of goods or services or both shall not be considered as payment made for such supply unless the supplier applies such deposit as consideration for the said supply. It is seen that applicant deducts certain amount from the salary of the employees on account of canteen ser....
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....luded from GST. As per the Circular no. 172/04/2022-GST dated 06.07.2022 of CBIC, the relevant extract of the said S.No. Issue Clarification 5. Whether various perquisites provided by the employer to its employees in terms of contractual agreement entered into between the employer and the employee are liable for GST? 1. Schedule III to the CGST Act provides that "services by employee to the employer in the course of or in relation to his employment" will not be considered as supply of goods or services and hence GST is not applicable on services rendered by employee to employer provided they are in the course of or in relation to employment. 2. Any perquisites provided by the employer to its employees in terms of contractual agreement entered into between the employer and the employee are in lieu of the services provided by employee to the employer in relation to his employment. It follows therefrom that perquisites provided by the employer to the employee in terms of contractual agreement entered into between the employer and the employee, will not be subjected to GST when the same are provided in terms of the contract between the employer and employee. It ....
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....es are liable to levy of tax. 5.4.3 If incidental or ancillary supply of goods or services such as canteen services by the employer to employee were to not fall under 'business', it would not be necessary to provide respite to 'supplies by employer to employees given as perquisite' from falling under 'supply' by taking recourse to schedule III. That is, if a transaction or activity is not a supply u/s 7(1) of CGST Act, then there would not be necessity to place such a transaction u/s 7(2)(a) for deeming it to be neither supply of goods nor supply of services. Hence, as discussed in Para 5.3.5, Applicant's activity of supply of canteen services falls u/s 7(1) of CGST Act, 2017. As discussed in Para 5.4.2, only the perquisites i.e., free supplies, in terms of a contractual agreement between the employer and employee are not to be subjected to GST as these are in lieu of the services provided by employee to the employer in relation to his employment. Hence, the recoveries made from the employees are liable to levy of tax as it is consideration against canteen services provided by the Applicant to the employees. 4.4 In the following cases AAR authorities held that GST is leviable....
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....s or services or both is used by a registered person for making an outward taxable supply of the same category of goods or services or both or as an element of a taxable composite or mixed supply; (ii) membership of a club, health and fitness centre; and (iii) travel benefits extended to employees on vacation such as leave or home travel concession Provided that the input tax credit in respect of such goods or services or both shall be available, where it is obligatory for an employer to provide the same to its employees under any law for the time being in force." 5.5.3 As per Section 17(5) of the CGST Act, ITC on food and beverages, outdoor catering, etc. is not available. However, it is seen that a proviso after sub-clause (iii) of clause (b) of sub-section (5) of section 17 of the CGST Act is provided to clarify that the ITC in respect of such goods or services or both would be eligible where it is obligatory for an employer to provide the same to its employees under any law for the time being in force. We observe that that Circular No. 172/04/2022-GST dated 06.07.2022 has been issued, by the CBIC, wherein clarifications on various issue pertaini....
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.... 5.5.4 The Applicant has submitted that they are a manufacturing unit and that there are more than 250 workers in the factory and in accordance with Section 46 of the Factories Act, 1948, it is obligatory on them to provide canteen facilities within the factory premises. Thus, considering the above-mentioned provisions, the ITC of the GST paid in relation to canteen charges is not blocked under u/s 17(5)(b). However, the issue of eligibility of input tax credit needs to be examined further in the light of the facts of the present case and various Tax Notifications. 5.5.5 From the facts of the case, it is clear that Canteen Contractor is providing Restaurant Service to the Applicant which is chargeable to GST at 5% rate in terms of Notification No. 11/2017-Central Tax (Rate) dated 28.06.2017, as amended, without availment of ITC. Under explanation to the aforesaid entry, it has been clarified that the concessional rate is mandatory rate and availing the normal rate of tax will not apply and that is the reason the amended Notification No. 20/2019-C.T. (Rate) dated 30.09.2019 has been issued exercising power under Section 16(1) and Section 148 of the CGST Act, 2017, so as to ....
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....ghting Products India Private Limited Vs. CCE8. 3. Cinemax India Limited Vs Union of India. [MANU/GJ/1053/2011]. 4. Indian Institute of Technology Vs. State of Uttar Pradesh & Ors The facts in these cases and the provisions of the law applied to the facts in these cases are different from present case, and hence are not applicable to the present case. 5.5.10 The Applicant further relied on following rulings. 1) Maharashtra AAR in RE: Tata Motors Limited in [Order No. GST-ARA-23-2019-20/B-46 dated 25.08.2020 2) Maharashtra AAR in a ruling in RE: Posco India Pune Processing Centre Pvt Ltd (Order No. GST-ARA-36/2018-19/B-110 dated 07.09.2018), 3) Maharashtra AAR, in M/s Jotun India Pvt Ltd (Order No. GST-ARA-36/2018-19/B-108 dated 4.10.2019). 4) Uttar Pradesh AAR in M/s. North Shore Technologies Private Limited (order no. 59 dated 29.06.2020) 5) Gujarat AAAR in by M/s. Amneal Pharmaceuticals Pvt Ltd, Ahmedabad (order dated 21.03.2025) 6) Gujarat AAR in by M/s. Zydus Lifesciences Ltd, (order no. GUJ/GAAR/R/2022/42 dated 28.09.2022) 7) Gujarat AAR in by M/s. SRF Ltd, (order No. GUJ/GAAR/R/2022/41 date....
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.... Act, -- (a) persons shall be deemed to be -related persons if -- (i) such persons are officers or directors of one another's businesses; (ii) such persons are legally recognised partners in business; (iii) such persons are employer and employee; .. ... As per 'a(iii)', employer and employee are deemed to be related persons for the purposes of this Act. This means any transaction between employer and employee will not come out of 'supply' for the reason of not having consideration. However, respite to such transactions has come through Schedule 3. Section 7(2)(a) states that, notwithstanding anything in sub-section (1), activities or transactions specified in Schedule III shall be treated neither as a supply of goods nor a supply of services. Serial Number 1 of Schedule III is as below. "1. Services by an employee to the employer in the course of or in relation to his employment." This entry includes only the services by an employee to the employer. However, it has been clarified by the above referred Circular that 'as corollary to this provision, the perquisite given to the employees in view of the contractual agreement are in lie....
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....covery of bond amount in the event of the employee leaving the employment before the minimum agreed period are incorporated in the employment contract to discourage non-serious candidates from taking up employment. The said amounts are recovered by the employer not as a consideration for tolerating the act of such premature quitting of employment but as penalties for dissuading the non-serious employees from taking up employment and to discourage and deter such a situation. Further, the employee does not get anything in return from the employer against payment of such amounts. Therefore, such amounts recovered by the employer are not taxable as consideration for the service of agreeing to tolerate an act or a situation." 5.8.2 In view of this clarification, notice pay recoveries made from the employees are not liable to levy of tax under CGST Act, 2017. 6. In view of the extensive deliberations as held hereinabove, we pass an order as follows: ORDER (Under Section 98 of the Central Goods and Services Tax Act, 2017 and the Maharashtra Goods and Services Tax Act, 2017) For reasons as discussed in the body of the order, the questions are answered thus - NO.GST-ARA-36....