Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  Missing seized records must be considered while testing ITC claim; duplicate GST demands ordered corrected: Delhi High Court. *  GST appeal can’t be rejected without addressing taxpayer’s grounds: Allahabad High Court. *  Surplus IGST credit can offset CGST, SGST shortfall: GSTAT. *  GST refund can’t be denied when cancelled airfares are returned with tax: GSTAT. *  3 Hearing notices issued within 2 minutes: Gujarat High Court flags portal flaw, seeks report. *  GSTR-9, GSTR-9C filing for FY 2025-26 enabled; pending GSTR-1 and GSTR-3B must be filed first. *  Dupattas are exempt fabrics, can’t be taxed as fibres at 4%: Madras High Court. *  Full transitional credit allowed on capital goods received after GST rollout: GSTAT denies Rs. 6.99 lakh export duty credit. *  GST return mismatch alone can’t justify fraud proceedings: GSTAT orders fresh adjudication under section 73. *  Supplier found non-existent later can’t alone justify input tax credit denial: GSTAT. *  GST interest stops once tax reaches government account, can’t run until return filing: GSTAT. *  Cancelled flat booking- GST refund can’t be denied without excluding COVID period from limitation: GSTAT. *  India notifies rules of origin for India–New Zealand FTA. *  Incomplete E-bike kits classifiable as complete vehicles, but not eligible for CKD duty concession: CESTAT. *  Same GST rate on main input and output can’t by itself bar inverted duty refund: GSTAT. *  Unjust enrichment doesn’t apply to customs refunds from assessments finalised before July 13, 2006: Gujarat High Court. *  CENVAT credit can’t be denied solely because plant And machinery are embedded in earth: Karnataka High Court. *  DFIA exports ineligible for RoDTEP benefits; customs directs repayment with applicable interest. *  Second E-Way bill alone doesn’t prove another supply: GSTAT. *  Bail denied in Rs. 1.19 crore fake GST refund case over risk of accused absconding again: Punjab and Haryana High Court. *  GST registration can be restored after revocation deadline if outstanding dues are paid: Gauhati High Court. *  Multiple GST proceedings over same suppliers: Calcutta High Court directs dept. to share findings for adjudication. *  E-Governance portal services not OIDAR, fixed deposit interest not taxable: CESTAT. *  Rs. 500 Stamp duty required on authority letters for CAs, CMA and GST practitioners in Pune GST division.  *  Rs. 1.10 crore GST refund must be paid in cash after business closure: Allahabad High Court. *  Godown rent attracts 18% GST even when used exclusively for exempt agricultural warehousing: AAR. *  GST portal launches "Multi-State Registration" facility: one master TRN for registration applications across multiple States/UTs. *  RoDTEP scheme extended till 31st December, 2026.  *  Mere disagreement with order can’t override Rs. 20 lakh appeal limit: GSTAT. *  Customs interest can’t be backdated before confiscation liability is determined; nearly 8 year period excluded: Delhi High Court.
Subject News *  GST summons: anticipatory bail maintainable without arrest order, but relief denied in evasion case: Allahabad High Court. *  GST Appeal can’t be decided without hearing taxpayer’s objections to fresh evidence: Allahabad High Court. *  GST ITC can’t be reversed merely because supplier grants discount without reducing tax liability: GSTAT. *  Mere quoting of GST provision is not a valid charge: GSTAT quashes ITC denial. *  Personal hearing mandatory before adverse GST order, even without taxpayer’s request: Rajasthan High Court. *  Parallel bail pleas without full disclosure amount to abuse of process Rs. 43.08 crore GST case sent for fresh hearing: Supreme Court. *  GST refund based on unchallenged advance ruling can’t be recovered using later circular: GSTAT. *  Payment of GST alone doesn’t end interest and penalty liability when tax and interest remain unpaid beyond 30 days of notice: GSTAT. *  GST demand over builders’ 80% procurement rule requires reasoned adjudication: GSTAT. *  Eligible ITC doesn’t automatically entitle taxpayers to compensation cess refund on domestic sales: GSTAT. *  GST confiscation order passed before reply deadline invalid: GSTAT. *  GST interest can’t be retained after tax refund on delayed export receipts: Punjab & Haryana High Court. *  GST appeal can’t be dismissed over pre-deposit shortfall without opportunity To respond: Bombay High Court. *  DGGI SCN can’t be challenged before reply and adjudication:Chhattisgarh High Court. *  GST input tax credit can’t be denied solely due to supplier’s retrospective registration cancellation: GSTAT. *  GST notice must explain fraud allegations; merely repeating section 74 Is not enough:  Himachal Pradesh High Court. *  Audit detection alone can’t justify GST fraud penalty; specific suppression must be proved: GSTAT. *  GST order uploaded only under ‘Additional Notices’ tab without separate intimation set aside: Calcutta High Court. *  Service Tax appeal can’t be rejected for missing pre-deposit proof when payment is already recorded: CESTAT. *  SGST dept. can’t hear appeal against CGST order: Calcutta High Court. *  Mere dispatch of tax order can’t prove service or make appeal time-barred: CESTAT. *  Dealer incentives can’t be taxed merely on ledger entries: CESTAT. *  DGFT orders quashed for failure to supply DRI letter relied upon in SCN: Bombay High Court. *  GST penalty u/s 122(1A) can’t apply to Pre-2021 transactions; unregistered beneficiaries also covered: Delhi High Court. *  Expired E-way bill caused by wrong PIN code can’t justify GST penalty without intent to evade tax: GSTAT. *  Used railway rails can’t be taxed as track material without proof they are fit for reuse: CESTAT. *  Earlier DGGI notice doesn’t bar separate GST demand on different issue: Delhi High Court. *  ITC dispute involves no question of law: GSTAT directs appeal to Vice-President. *  Earlier DGGI notice doesn’t bar separate GST demand On different issue: Delhi High Court. *  No E-way bill required for interstate goods movement in november 2017: GSTAT quashes detention and penalty.  

Comments

Print   |    |  Comment

GST UPDATE No 189 ON DETERMINATION OF TRANSACTION AS EXPORT

GST UPDATE No 189 ON DETERMINATION OF TRANSACTION AS EXPORT
The scope, coverage and taxability of intermediary services has been a subject matter of discussion since erstwhile GST regime. It is worth mentioning here that the constitutional validity of section 13(8)(b) of the IGST Act, 2017 pertaining to determination of place of supply for intermediary services was challenged before hon’ble Bombay High Court in the case of DHARMENDRA M. JANI VERSUS UNION OF INDIA AND OTHERS [W.P. NO. 2031 OF 2018] wherein there was difference of opinion between the judges which depicts the litigation involved therein. Recently, an issue was raised before Maharashtra AAR in the case of M/S GULF TURBO SOLUTIONS LLP wherein applicability of the provision of intermediary and determination of transaction as export of service was under consideration. The decision imparted in this regard is the subject matter of discussion of our present update. The applicant is registered as a LLP (GTSLLP), engaged in business of service and repairs of various types of turbochargers. There is one more company which is incorporated outside India, named Gulf Turbo Repairs and Services FZC (GTRS). The applicant has agreed to provide marketing services to GTRS FZC as per the marketing agreement including conducting market surveys, providing information of Indian and International market trends, assisting GSTRS in adaption and implementation of advertising policy etc. The appointment of applicant for the said services is on P2P basis and the parties do not intend to create a principal and agent relationship. Furthermore, the applicant will be providing services to GTRS on own account and bear the concerned expenses thereof. Advance ruling on following is sought by the applicant: 1. Whether the marketing services constitute supply of “support services” or an “intermediary service”? 2. Whether the service by the applicant comes under the ambit CA. PRADEEP JAIN ??www.capradeepjain.com??pradeep@capradeepjain.com??5 of Export of Services under Section 2(6) of IGST Act, 2017? The applicant contended that marketing service agreement defines the service as principal to principal. Furthermore, there is no authority on the part of applicant to carry out any investigation or settlement of customer’s disputes. On the contrary, all the expenses were borne by the applicant himself. Therefore, it was argued that the proposed service does not comes under the ambit of “Intermediary Services”. It was further argued that the said service is a composite supply wherein the marketing supply is a principal supply. Furthermore, as per the definition of Export Service, the supply of marketing services is an export of service. The applicant provided various services having different SAC codes such as market research, events and trade shows, advertising services etc. The counsel of department argued that both the parties are deemed as distinct persons. Further, the supplier of service is in India and the recipient and place of supply is outside India. Hence, the said transaction can qualify as export of services and therefore, the nature of transaction does not support that it is intermediary services. However, as per the sub clauses of the agreement, it is evident that the concerned service can be treated as intermediary in nature. The AAR stated that the applicant will be connecting with customers on behalf of GTRS for the purpose of obtaining orders and maintaining a close commercial relationships. Therefore, the applicant will be acting as a conduit and providing feedback to GTRS. Furthermore, on studying the agreement between both parties, it was concluded that there is a separate Transfer Pricing Agreement which is an accounting practice representing the fact that the price of one division in a company charges another division. Consequently, the AAR analysed that the agreement between the parties is not on principal to principal basis. After analysing the definition of intermediary as in IGST Act, it was held that the applicant satisfies the prescribed conditions of arranging and facilitating supply on behalf of the two persons. Therefore, it is an intermediary service. Answering the second question raised, it was stated that in case of supply of intermediary service to GTRS, location of applicant is in India and therefore, CA. PRADEEP JAIN ??www.capradeepjain.com??pradeep@capradeepjain.com??6 condition of export of service is not fulfilled. The above decision indicates that extra care and caution is to be exercised while the contract is drafted so as to ensure that the transaction does not cover under the ambit of intermediary service, specially, when the location of service provider is in India. The place of supply provisions in case of intermediaries tend to levy tax on the services provided by intermediaries located in India as against the intermediaries located outside India which creates disparity and discrimination. The constitutional validity of the provision of place of supply of intermediary services has already been challenged before hon’ble Bombay High Court in the case of DHARMENDRA M. JANI VERSUS UNION OF INDIA AND OTHERS [W.P. NO. 2031 OF 2018] and as there was difference in opinion amongst the judges, the matter was referred to the Larger Bench with decision pending. It is hoped that the disparity in the place of supply provision for intermediary is being resolved by the larger bench so that no tax is levied on intermediaries located in India and exporting their services thereby generating foreign exchange for the country.
Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com