Embed Size (px)
Citation preview
CA Venugopal Gella
Issues
Under
Exemptions
Notifications:2/2017 – CTR Goods
12/2017 – CTR ServicesCA. Venugopal Gella
CA Venugopal Gella
Coverage
Introduction to exemptions
Exemption-vis-à-vis GST : Analysis of Section 11
Interpretation principles of exemption notification
Key points in present exemptions
Decisions on GST on exemptions
Q & A
2
CA Venugopal Gella
Basics to Learn
Exemption
What is Exemption?
Levy of tax Vs. Payment of tax
General inclusions in exemption
Area based / Sector Based / Customer Based exemptions in GST?
CA Venugopal Gella
Basics of Law
CA Venugopal Gella
Introduction• Literally “exemption” is freedom from tax liability.
• In fact, an exemption provision is like an exception either because of legislative intention or on economic justification or to augment State revenue or tendency to increase the burden on the other unexempted class of taxpayers
• Exemption notification only suspends collection of liability, wholly or partially & does not negate the liability to tax. Peekay Re-Rolling Supreme Court case
• The object of the exemption notification is to forgo due tax and confer certain benefits upon tax payer
• Exemption are policy matters. Exemptions are different from exports.
•
5
CA Venugopal Gella
Types of Supply
Supply
Taxable Supply
Zero Rated Supply
Exempt Supply
Non Taxable Supply
GST Returnsa) Non – GST Supplyb) Non - Supply
CA Venugopal Gella
Types of exemptions• Thresh hold exemption
• Absolute exemption
• Exemption subject to fulfilment of certain conditions before Sale,
• Exemption subject to fulfilment of certain conditions after sale,
• Time bound exemptions
• Exemption from whole of GST, and
• Exemption from any part of GST/partial exemption
• Deemed exemptions-for ITC
• Supply specific exemptions
• Receiver specific exemption
• Provider specific exemption
• Ex-abundant cautionary exemptions-Services supplied from non-taxable territory to non-taxable territory/all entries in Schedule III
• Ad hoc exemption
• General exemption
• Exemption by special order
• Exclusions from valuation-reimbursement expenditure- it is tax on your transaction value not on other’s transaction value-it is tax on your supply
• It is exemption but it is not exempted turnover for ITC
7
CA Venugopal Gella
Impact of having Exemptions in GST• Exemptions are very limited in GST for various reasons
• Broad base/ otherwise leads to increase tax burden on other sectors
• Distortions/breakage of credit chain leads to increase in cost
• Seamless credit
• Largely food grains & exemptions under service tax largely continued
• Some entries were slightly modified to charge tax and allow the ITC
• Withdrawal of service tax exemptions for construction sector- Goods + Services?
• High tax incidence under the guise of nation development
• Because of Tax terrorism or tax adventurism-exemptions were narrowed down
8
CA Venugopal Gella
2(47) Exempt Supply Inclusions – 3 LimbsMeans : Supplies
attracting Nil rate of tax
Means : Supplies wholly exempt
from tax
Section11of CGST Act
Section 6 of IGST Act
Includes: Non taxable Supply
CA Venugopal Gella
First SegmentExempt Supply Means supplies attracting Nil rate of tax
• The first segment of Exempt Supply definition talks about Nil rate. • We can say that although there is levy of tax but the tax rate is “Nil”. Nil is also
a rate just like any other rates say 5%, 12% etc. Judicial precedents of erstwhile laws which states that Nil is also a tax rate.
• Thus Nil rated supply is exempt supply.
Relevant Citations –
• Wallace Flour Mills Vs. CCE [(1989) 44-ELT-598 (SC)]
• Vazir Sultan Tobacco Vs. CCE [(1996) 82-ELT-260 (Tri-Del)]
• Associated Cement Co. Ltd Vs. Commissioner of Customs [(2001) 128-ELT-21 (SC)]
CA Venugopal Gella
Second Segment
• Exempt Supply Means supplies which may be wholly exemptfrom tax under section 11 of CGST Act, or under section 6 ofthe Integrated Goods and Services Tax Act
CA Venugopal Gella
Analysis of Sec 11
CA Venugopal Gella
Section 11 - Exemptions
Section 11
11(1) General Exemption by Notification
Absolutely or Subject to specific condition
Wholly or Partly
11(2) Special Exemption by Special Order
Circumstances of Exceptional Nature
11(3) Insert an explanation in the notification/order
Within 1 year & it will have retrospective effect
CA Venugopal Gella
Sec 11• Subsection 1 of Section 11
Where the Government is satisfied that it is necessary in the public interest so todo, it may, on the recommendations of the Council, by notification, exemptgenerally, either absolutely or subject to such conditions as may be specifiedtherein, goods or services or both of any specified description from the whole orany part of the tax leviable thereon with effect from such date as may bespecified in such notification.
• Subsection 2 of Section 11Where the Government is satisfied that it is necessary in the public interest so todo, it may, on the recommendations of the Council, by special order in eachcase, under circumstances of an exceptional nature to be stated in such order,exempt from payment of tax any goods or services or both on which tax isleviable.
CA Venugopal Gella
Is Exemption Mandatory?• Explanation:- For the purposes of this section, where an
exemption in respect of any goods or services or both from the whole or part of the tax leviable thereon has been granted absolutely, the registered person supplying such goods or services or both shall not collect the tax, in excess of the effective rate, on such supply of goods or services or both.
• Makes mandatory on the assesse to avail exemption
CA Venugopal Gella
Analysis of Section 11 : Public Interest
• Public interest is different from individual interest UOI Vs Unicorn Industries2019 (368) E.L.T. 202 (S.C.)
• Exemption notification can be withdrawn in public interest and in such anevent, principle of promissory estoppel would not apply to action ofwithdrawal
• Doctrine of promissory estoppel applies to statutory notifications especiallywhere State does not plead any overriding public interest MRF Ltd case
• Exact nature of public interest need not to be disclosed by Govt whenquestioned, must establish the grounds of public interest
• Power to exempt in public interest includes power to withdraw, modify orrescind exemption in public interest-Indian Charge Chrome
Exemption notification can be withdrawn in public interest-Kasinka
16
CA Venugopal Gella
Interpretation-Exemption Notification
Dilip Kumar and Company Vs Commissioner of Customs (Import) Mumbai[2018-TIOL-302-SC-CUS-CB]
• Burden to prove for its entitlement is always on assessee claimingexemption.
• If there is any ambiguity in exemption Notification, benefit of suchambiguity cannot be claimed by assessee and it must be interpreted infavour of Revenue.
• Burden to prove tax liability of an assessee is on Revenue. In case of anyambiguity in a taxing statute imposing tax liability on the assessee, benefitof doubt to be given to assessee.
• It is a well-known principle of construction of a contract that if the termsapplied by one party are unclear, an interpretation against that party ispreferred (verba chartarum fortius accipiuntur contra proferentem).”
17
CA Venugopal Gella
Interpretation-Exemption Notification
• It is now a well-established principle of law that whereas eligibilitycriteria laid down in an exemption notification are required to beconstrued strictly, once it is found that the applicant satisfies thesame, the exemption notification should be construed liberally.
[See CTT v. DSM Group of Industries (S.C.C. para 26); TISCO v. State of Jharkhand(SCC paras 42 to 45);State Level Committee v. Morgardshammar India Ltd.;Novopan India Ltd. v. C.C.E. & Customs; A.P. Steel Re-Rolling Mill Ltd. v. State of
Kerala and Reiz Electrocontrols (P) Ltd. v. C.C.E.]”
• There cannot be any addition or subtraction to words employed init - Its wordings have to be given their natural meaning, when theyare simple, clear and unambiguous
18
CA Venugopal Gella
Be aware - Exemption Notification
• Exemption not claimable merely on the strength of Finance Minister’sBudget speech B K Industries vs UOI 1993 (65) E.L.T. 465 (S.C.)
• Even if an taxpayer does not claim benefit under a particularnotification at initial stage, he is not debarred, prohibited or estoppedfrom claiming such benefit at a later stage. Eligibility of exemptionnotification is question of law, the same can be raised at any stage ofproceedings.
• If taxpayer is entitled to benefit under two different Notifications orunder two different heads, he can claim more benefit and it is duty ofauthorities to grant such benefits if applicant is entitled to suchbenefit. Share Medical Care vs UOI 2007 (209) E.L.T. 321 (S.C.).
19
CA Venugopal Gella
If Exempt is it Leviable?
• Normally once an exemption has been granted against particulartransaction, it presumes that the transaction is first taxable and thenaccordingly granted the exemption.
• But fact that the exemption has been granted, in all the cases it does notmean that such transaction is leviable to tax. Some cases the governmentgrants exemption on ex-abundant caution.
• Some cases delegated authority also crosses its boundaries whileadministering the taxation law. M/s. Larsen & Toubro Ltd vs. Commissionerof Central Excise and Customs, Kerala 2015 (39) S.T.R. 913 (S.C.)
• The exemption notifications normally neither determines the levy of tax nordetermines the classification
20
CA Venugopal Gella
Exemption from part of taxIn case of exemption from a part of tax,
• will it be taxable supply or
• exempt supply or
• partly taxable and partly exempt?
• Can a single supply be vivisected that way?
• Illustration:
Notification 40/2017 - Central Tax Rate dated 23rd October 2017provides for concessional rate of tax for supplies to merchant exportersby exempting tax over and above 0.1%.
CA Venugopal Gella
Interpretation-Exemption Notification• Rules of Interpretation applicable to cases of classification under the Tariff
and not applicable to interpretation of exemption notification CC Vs MewarBartan Nirman Udyog 2008 (231) E.L.T. 27 (S.C.)
• Word ‘now’ in phrase “now exempt from duty”. Effect of the word is thatexemption is to operate henceforth. Jay Mahakali Rolling Mills Vs UOI 2007(215) E.L.T. 11 (S.C.)
• Grant of rebate, exemption or concession is in the nature of policy of theGovernment. Normally in such policy matters, a court of law will notinterfere unless the policy is shown to be contrary to law, inconsistent withthe provisions of the Constitution or otherwise arbitrary or unreasonable.Sidheswar Sahakari Sakhar 2005 (181) ELT 304 (SC)
We cannot question the Government wisdom
22
CA Venugopal Gella
Interpretation-Exemption Notification• Generally, in the exemption notification the effective date for implementation of such notification is will be
given.
If nothing is mentioned, it is effective from the date on such exemption notification issued & published in official Gazette.
• There are couple of exceptional circumstances, depending upon facts, circumstances, past antecedents, the object and purpose and the intention of exemption notifications, doctrine of fairness, Courts held that exemption can applied retrospectively though such retrospectivity is silent on part of Notification.
Some of such decisions are as follows:-
• UOI Vs Indian Tobacco Association 2005 (187) E.L.T. 162 (S.C.)
• UOI vs VVF Ltd 2020-TIOL-83-SC-CX-LB
• WPIL Ltd., Ghaziabad v. Commissioner of Central Excise, Meerut, U.P., (2005) 3 SCC 73 = 2005 (181) E.L.T. 359 (S.C.);
23
CA Venugopal Gella
Activity Based Issues
CA Venugopal Gella
No Registration : For Wholly ExemptSection 23(1) of the CGST Act, 2017 - following persons shall not be liable to registration:
• any person engaged exclusively in the business of supplying goods or services or both that are not liable to tax or wholly exempt from tax,
• an agriculturist, to the extent of supply of produce out of cultivation of land.
25
CA Venugopal Gella
Input Tax Credit (ITC) – Apportionment of Credit• 17 (2) Where the goods or services or both are used by the registered
person partly for effecting taxable supplies including zero-ratedsupplies and partly for effecting exempt supplies, the amount of creditshall be restricted to so much of the input tax as is attributable to thesaid taxable supplies including zero-rated supplies.
• 17 (3) The value of exempt supply under sub-section (2) shall be suchas may be prescribed, and shall include supplies on which the recipientis liable to pay tax on reverse charge basis, transactions in securities*,sale of land and and sale of building.
26
CA Venugopal Gella
ITC Availment
ITC
Used in Business
Yes
a
No
r
Common Supplies
Used for Taxable Supplies
Common Supplies
Yes
a
No
rRule 42 and Rule43
CA Venugopal Gella
Exempt supply – later taxable or vice versa• Section 18 (d): Exempt supply by a registered person becomes a
taxable supply he shall be entitled to take credit of input tax in respect of • inputs held in stock and
• inputs contained in semi-finished or finished goods held in stock relatable to such exempt supply and
• capital goods exclusively used for such exempt supply
• on the day immediately preceding the date from which such supply becomes taxable
• Credit on capital goods shall be reduced by such percentage points as may be prescribed in Rule 41
CA Venugopal Gella
Exempted Goods
CA Venugopal Gella
Some Examples
CA Venugopal Gella
General• A list of items have been notified under section 11(1) of the CGST Act,
2017/section 6(1) of the IGST Act, 2017. These items have been exempted from whole of the tax. Since GST is a tax for common man, everyday items used by the common man have been included in the list of exempted items.
• Items such as : unbranded atta / maida/ besan, unpacked food grains, milk, eggs, curd, lassi and fresh vegetables are among the items exempted from GST
CA Venugopal Gella
What is Brand• Explanation.—For the purposes of this Schedule,—
• (a) The phrase "brand name" means brand name or trade name, that is to say, a name or a mark, such as symbol, monogram, label, signature or invented word or writing which is used in relation to such specified goods for the purpose of indicating, or so as to indicate a connection in the course of trade between such specified goods and some person using such name or mark with or without any indication of the identity of that person.
• (b) The phase Registered Brand name means:-A) A brand registered as on 15.05.2017 under the Trademarks Act, 1999, irrespective of whether or not such brand is subsequently deregistered. B) A brand registered as on 15.05.2017 under the Copyright Act, 1957. C) A brand registered as on 15.05.2017 under any law for the time being in force in any other country.
CA Venugopal Gella
Foregoing the brand• the person undertaking packing of such goods in unit containers which
bears a brand name shall file an affidavit to that effect with the jurisdictional Commissioner of Central tax that he is voluntarily foregoing his actionable claim or enforceable right on such brand name as defined in Explanation (ii)(a); and
• the person undertaking packing of such goods in unit containers which bear a brand name shall, on each such unit containers, clearly print in indelible ink, both in English and the local language, that in respect of the brand name as defined in Explanation (ii)(a) printed on the unit containers he has foregone his actionable claim or enforceable right voluntarily:
Annexure I Inserted by Notification No. 28/2017-Central Tax (Rate), dated 22-09-2017 w.e.f 22-09-2017
CA Venugopal Gella
Government
CA Venugopal Gella
To the GovernmentGovernment
To the Government
Pure services
(excluding works contract service or other composite supplies involving supply of
any goods)
by way of any activity in relation to any function entrusted to
Panchayat under Article 243G of the constitution
Municipality under Article 243W of the constitution
CA Venugopal Gella
Government
By the Government :: TO
Any activity entrusted
to a municipalit
y
Any activity
entrusted to a
panchayat
Department of Posts
Services in relation to
Aircraft/vessel
Transport of Goods/Passenger
s
To another CG/SG/UT/Local
Authority
By the Government
CA Venugopal Gella
Government
By the Government
To a business entity with an aggregate turnover not
exceeding Rs.20 Lakhs
Does Not Include
Renting of Immovable
Property
Services by department of
posts
Services of Aircraft/Vessel
Transportation of Goods/Passenger
s
Service where consideration does not exceed Rs.5000
In case of Continuous service-Rs.5000 is for the FY
By the Government
CA Venugopal Gella
Issues• Constitutional obligations, sovereign functions, statutory functions at any stretch
of imagination cannot be considered as services in course of business
• First time when they are taxing Government services-department told it is for level playing field, if so
• Where the Government is not competing with private sector-such services cannot be taxed
• Functions of public authority is only taxable subject to exemptions & exclusions in supply definition
• IssuesNo clarity on definition of government service :::No clarity on exemption v RCM on Govt service :::What is the consequence of paying tax under RCM on exempted services? :::Would ITC be curtailed?
CA Venugopal Gella
Licesnse
“Service by way of grant of alcoholic liquor licence, against consideration in the form of licence fee or application fee or by whatever name it is called.” Notification No. 25/2019
Issues• If liquor licence fee is exempted why spectrum, mining royalty is not exempted• Is there any rational • Why it cannot be applied for all other Govt services • GST Council minutes can be seen-interesting discussions-states proposals,
Bureaucracy apprehensions, supremacy of bureaucrats over legislators-Basic structure of Constitution
• ROC-fees collected for increasing the authorized share capital of the company-is there any service & consideration
39
CA Venugopal Gella
Real Estate
CA Venugopal Gella
Pure Labour ContractsP
ure
lab
ou
r co
ntr
acts
Individual house Construction / Enhancement under the Housing for
all (urban) Mission or Pradhan Mantri Awas Yojana
Single Residential unit otherwise than as a part of a residential
complex
Construction
Erection
Commissioning
Installation
CA Venugopal Gella
Composite supply of goods and services with goods </= 25%
• Provided to the Central Government, State Government or Unionterritory or local authority or a Governmental authority or aGovernment Entity
•
• by way of any activity in relation to any function entrusted to aPanchayat under article 243G of the Constitution or in relation to anyfunction entrusted to a Municipality under article 243W of theConstitution.
CA Venugopal Gella
Renting of residential dwellingServices by –
• way of renting of residential dwelling for use as residence.
• The Phase ‘residential dwelling ‘ has not been defined in the Act.
• It has been therefore to be interpreted in terms of the normal trade parlance as per which it is any residential accommodation, but does not include hotel, motel, inn, guest house, camp-site, lodge, house boat or like places meant for temporary stay.
CA Venugopal Gella
Services by way of long Term lease• Upfront amount (called as premium, salami, cost, price, development
charges or by any other name) payable in respect of service by way of granting of long term lease of thirty years, or more of industrial plots or plots for development of infrastructure for financial business, provided by the State Government Industrial Development Corporations or Undertakings or by any other entity having 50 per cent or more ownership of Central Government, State
• Government, Union territory to the industrial units or the developers in any industrial or financial business area.
CA Venugopal Gella
Transportation
CA Venugopal Gella
Transport of passengers• (a) air, embarking from or terminating in an airport located in the state of :
• Arunachal Pradesh
• Assam
• Manipur
• Meghalaya
• Mizoram
• Nagaland
• Sikkim
• Tripura
• Bagdogra located in West Bengal
• (b) Non- Air conditioned contract carrier other than • Radio taxi excluding tourism, Conducted tour, Charter or Hire.
• (c) Stage carriage other than air-conditioned stage carriage
CA Venugopal Gella
Definitions
• (zzh) "stage carriage" shall have the same meaning as assigned to it in clause (40) of section 2 of the Motor Vehicles Act, 1988 (59 of 1988);
• (t) "contract carriage" has the same meaning as assigned to it in clause (7) of section 2 of the Motor Vehicles Act, 1988 (59 of 1988);
CA Venugopal Gella
Transport of passengers
Railways Other Than
First class
On a air conditioned Coach
Metro, Monorail or Tramway
Inland waterways
Public Transport Other Than
Predominantly for tourism purpose in a
vessel between places located in India
Metered cabs or Auto-rickshaws
Including e-rickshaws
CA Venugopal Gella
Transport of Goods• By Road : Except for services of
• Goods Transport agency
• A courier agency
• By inland water ways
• By Air• Transportation from a place outside India up to the custom station of clearance
in India
CA Venugopal Gella
Transport of Goods by Rail
Relief material meant for victims
Defence military equipment
Newspapers or magazines
Railway equipment
Agriculture Produce
Milk ,Salt and Food grains including Flours, pulses and Rice
CA Venugopal Gella
Services by a GTA
Agriculture Produce
charged for the transportation of goods in a single carriage does
not exceed Rs.1,500
charged for transportation for a
single consignee does not exceed Rs.750
milk, salt and food grain including flour, pulses
and riceOrganic Manure
News Papers/Magazines registered with the
Registrar of Newspapers
Relief Material for victims
Defence/Military equipment
CA Venugopal Gella
Issue• Track of type of Goods transported
• What about service by GTO
• Difference between GTA and GTO
CA Venugopal Gella
Lending service
CA Venugopal Gella
Services of lending
Service of
Extending Deposits, Loans or advances
Consideration is represented by way of
Interest/discount
Other than credit card services
Inter se sale or purchase of foreign currency amongst Banks /authorised dealers of foreign exchange/ banks
and such dealers
Services by an Acquiring Bank,
for settlement of any amount up to Rs. 2,000 in a single Transaction
transacted through credit card, debit card or other
payment card service
CA Venugopal Gella
Issue• Intercorporate loans given by companies – can it be covered in this?
• What would be the complications?
CA Venugopal Gella
Educational Institution
CA Venugopal Gella
Services by Education Institution
Explanation to Notification 12/2017
“educational institution” means an institution providing services by
way of
i) pre-school education and education up to higher secondary
school or equivalent;
ii) education as a part of a curriculum for obtaining a qualification
recognised by any law for the time being in force;
iii) education as a part of an approved vocational education course
CA Venugopal Gella
Services to Education Institution
By Educational Institution
To its students, faculty and staff
To Educational Institution
Transportation of students, faculty
and staffCatering
Including Mid-day meal scheme sponsored by
CG/SG/UT
Security, Cleaning/Houseke
eping services
Admission to, Conduct of
examination by such institution
Up to Higher Secondary
Applicable to pre-school and up to higher secondary school or equivalent
CA Venugopal Gella
• Keeping track of meaning of and Educational institutions.
• From Supplier perspective is challenging
• All ITC becomes common credits
•
Issues
CA Venugopal Gella
Charity and Charitable organisations
CA Venugopal Gella
Charitable Activity
Services by an entity registered under section 12AA of theIncome-tax Act1961 by way of charitable activities.
Conditions for Exemption
The entity is registered with income tax authorities under section 12AA of the Income tax Act, 1961, and
The entity carries out one or more of the specified
charitable activities.
CA Venugopal Gella
Services by way of Charitable Activities"charitable activities" means activities relating to—
(i) public health by way of ,—
(A) care or counselling of
(I) terminally ill persons or persons with severe physical or mental disability;
(II) persons afflicted with HIV or AIDS;
(III) persons addicted to a dependence-forming substance such as narcotics drugs or alcohol; or
(B) public awareness of preventive health, family planning or prevention of HIV infection;
(ii) advancement of religion, spirituality or yoga;
(iii) advancement of educational programmes or skill development relating to,—
(A) abandoned, orphaned or homeless children;
(B) physically or mentally abused and traumatized persons;
(C) prisoners; or
(D) persons over the age of 65 years residing in a rural area;
(iv) preservation of environment including watershed, forests and wildlife;
CA Venugopal Gella
Issue• Charitable activity specific – GST v. Income tax
• What if Certificate under Section 12AA is withdrawn
CA Venugopal Gella
Religious Place
Conduct of any religious ceremony
Renting of precincts of a religious place meant
for general public
Renting of rooms where charges
Rs.1,000 or more per day
Renting of premises, community halls,
Kalyan mandapam or open spaces
Rs.10,000 or more per day
Renting of shops/ other spaces for a
business/commerceRs.10,000 per month
Shall not apply to
CA Venugopal Gella
Issue
• Religious activity ?
CA Venugopal Gella
Business Transfer
CA Venugopal Gella
Transfer of business as a Going Concern• Services by –
• way of transfer of a going concern, as a whole or an independent part thereof
• This entry is similar to Service Tax exemption as provided vide Entry No 37 of Notification no 25/2012-ST dated 20-06-2012.
CA Venugopal Gella
Issue• How would this entry impact the recent addition of IRP/ RP
registration?
• Interplay of exemption notification v. Sec 18(6)
CA Venugopal Gella
Medical Services
CA Venugopal Gella
Health Care• Services by way of—
• (a) health care services by a clinical establishment, an authorized medical practitioner or para-medics;
• (b) services provided by way of transportation of a patient in an ambulance, other than those specified in (a) above.
• "clinical establishment" means a hospital, nursing home, clinic, sanatorium or any other institution by, whatever name called, that offers services or facilities requiring diagnosis or treatment or care for illness, injury, deformity, abnormality or pregnancy in any recognisedsystem of medicines in India, or a place established as an independent entity or a part of an establishment to carry out diagnostic or investigative services of diseases;
CA Venugopal Gella
Columbia Asia Hospitals AAR• Whether two or more supplies of goods or services which are naturally
bundled in which principal supply is exempt and others are taxable, can be treated as composite supply and if yes, principal supply being exempt supply, can the said composite supply be treated as exempt supply or the same cannot be treated as composite supply?
• If not treated as composite supply, is registered person allowed to claim input tax credit of tax paid on procurement of capital goods, inputs and input services related to both taxable supply and exempted supply?
CA Venugopal Gella
RWA
CA Venugopal Gella
Services by an Residential Housing Society / Association
• Service by an unincorporated body or a non-profit entity registered under any law for the time being in force, to its own members by way of reimbursement of charges or share of contribution –• (a) as a trade union;
• (b) for the provision of carrying out any activity which is exempt from the levy of Goods and service Tax; or
• (c) up to an amount of Seven thousand five Hundred rupees per month per member for sourcing of goods or services from a third person for the common use of its members in a housing society or a residential complex.
CA Venugopal Gella
Issue• Circular 109/2019 – interpretation of upto 7500/-
• GST on corpus – corpus is like deposit. Will not liable to tax unless utilised for supply. Karnataka AAR
Annual turnover of RWA
Monthly maintenance charge
Whether exempt
> Rs. 20 lakhs > Rs. 7,500Rs. 7,500 or less
NoYes
Rs. 20 lakhs or less > Rs. 7,500Rs. 7,500 or less
YesYes
CA Venugopal Gella
Issues in present exemptions• Services by way of pure labour contracts of construction pertaining to a single residential unit
otherwise than as a part of a residential complex.
• Exemption for upfront amount in case long term lease of land-exemption is subject to use of land for industrial purpose for indefinite period.
• Joint & several liability on original lessor, lessee and subsequent lessee in case of change in use by any future lessee-suffers from vagueness, cannons of taxation like-certainity & definite
• Mineral Area Development Authority & Ors. v. Steel Authority of India & Ors. , (2011) 4 SCC 450-Entry 49 of State list covers only direct tax or even IDT
75
CA Venugopal Gella
Some judgments
• M/s. Torrent Power Ltd. Vs UOI 2019 (1) TMI 1092 held that Application Fee, Rental Charges, Testing Fee, Labour Charges are part of the transmission or distribution of electricity by an electricity transmission or distribution utility hence eligible for exemption.
• GUJARAT CO-OPERATIVE MILK MARKETING FEDERATION LTD VS UOI [2020-TIOL-456-HC-AHM-GST] Milk cannot be stored without chilling as otherwise it would get spoiled. Therefore, storage of milk would include chilling of milk. Chilling of milk does not alter any of its essential characteristics and it still remains raw milk, and it is this raw milk which is thereafter packed.
• Library founded by Private Limited Company for general public on payment of required subscription 2018 (19) G.S.T.L. 54 (Tri. - Chan.)
76
CA Venugopal Gella
Some judgments
• MANTHENA SATYANARANA RAJU CHARITABLE TRUST VS UNION OF INDIA2017 (003) GSTL 0213 A.P services namely, steam bath, sauna/infraredbath, foot and arm bath, whirlpool bath, circular jet, full emersion bath,spinal spray, spinal bath, hip bath, hydro deluxe bath, jacuzi, mud bath,neem paste bath, plant leaf bath, sand bath, massage, mud packs, vibromassages, physiotherapy, exercises, yoga, meditation, colon therapy arepart of health services under naturopathy as system of recognised system ofmedicine.
A system of medicine which focused mainly on healthy living and notmerely a prolonged existence cannot be denied the benefit of theexemption notification on the basis of a misconception that a clinicalestablishment is one that would treat people after they fall ill and notone which will prevent people from falling ill.
77
CA Venugopal Gella
Some judgments • Training/Coaching provided by appellants in Intermediate Colleges being composite and an integrated
course, whereby students become eligible for intermediate qualification and simultaneously become prepared for taking the entrance examinations, cannot be artificially split as intermediate and entrance coaching and more particularly demanding Service Tax on even the intermediate coaching citing inability to split the course fee. Sri Chaitanya Educational Committee vs CCE 2019 (22) G.S.T.L. 67 (Tri. - Hyd.)
• The expression ‘recognized by law’ is a very wide one. The legislature has not used the expression “conferred by law” or “conferred by statute”. Thus even if the certificate/degree/diploma/qualification is not the product of a statute but has approval of some kind in ‘law’, would be exempt. Indian Institute of Aircraft Engineering 2013 (30) S.T.R. 689 (Del.)
78
CA Venugopal Gella
Some judgments • Government undertaking set up by an Act of Parliament or a State Legislature need not satisfy the second
condition that 90% equity or control would be held by Government and carry out a function entrusted by the Government. This condition is applicable only to (second limb of definition) those undertakings established by Government. Shapoorji Paloonji & Company Pvt. Ltd Vs C.C., C. EX. & S.T., Patna. 2016 (42) S.T.R. 681 (Pat.)
• For vehicle having “stage carriage” permit, to operate for private persons/marriage parties under contract, contract carriage permit/special permit necessarily required to be obtained - Once such contract carriage permit/special permit obtained, buses no longer have character of stage carriage but acquire colour of contract carriage permit/special permit and hence cannot be covered under negative list or impugned exemption notification. APSRTC 2018 (10) G.S.T.L. 441 (Tri. - Hyd.)
79
CA Venugopal Gella
Some judgments • Maxim Tubes Company Vs UOI 2019 (368) E.L.T. 337 (Guj.)
• “pre-import condition” contained in Paragraph 4.14 of Foreign Trade Policy, 2015-20 inserted vide Notification No. 33/2015-20, dated 13-10-2017 and inserted vide clause (xii) in Notification No. 18/2015-Cus. vide Notification No. 79/2017-Cus., dated 13-10-2017, are hereby struck down as being ultra vires the Advance Authorisation Scheme as contained in the Foreign Trade Policy, 2015-20 as well as the provisions of the Handbook of Procedures.
• Exemption Notification No. 18/2015-Cus., dated 1-4-2015, although amended by deleting condition (xii), relief cannot be given retrospectively by Revenue - Benefit to be given by this Court only
80
