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 ON APPLICABILITY OF GST ON REMUNERATION PAID TO DIRECTORS -008/2020-21

GST UPDATE ON APPLICABILITY OF GST ON REMUNERATION PAID TO DIRECTORS -008/2020-21
The litigation as regards liability of the company to pay tax under reverse charge mechanism on payments made to its directors is not new and is continuing from the erstwhile service tax regime. The legacy has been travelled into the GST regime and various pronouncements rendered by Authority for Advance Rulings are instigating the fire of litigation in the GST era too. The present update seeks to discuss the recent Advance Ruling pronounced in the case of M/s Clay Craft India Pvt. Ltd. vide Order No. RAJ/AAR/2019-20/33 dated 20.02.2020 on the applicability of GST under reverse charge mechanism on remuneration paid to directors by a company. It is pertinent to mention that this is not the first decision wherein such adverse view has been taken. Similar view was already taken by the Authority of Advance Ruling Karnataka in the case of M/s Alcon Consulting Engineers (I) Pvt. Ltd. reported as [2019 (30) G.S.T.L. 678 (A.A.R.-GST)].  
In view of various queries being received by the assessees on the issue of payment of GST by the companies to payments made to its directors under reverse charge mechanism, the applicant filed advance ruling before the Rajasthan AAR for decision on the said issue. It was pleaded that the director of the company is in-charge of managing various day to day affairs of the company such as production, despatch, quality checks , accounting etc. and are being paid remuneration which is being reflected by the directors under their “Income from Salary head” in the Income Tax Returns and on which TDS is also being deducted under section 192 of the Income Tax Act. Moreover, all the statutory obligations such as deduction of EPF was being done by the company which indicated the relationship of employer-employee between the director and the company. It was contended that as the services provided by an employee to his employer are covered under clause I of Schedule III, the said activity is neither supply of goods nor supply of services so as to attract levy of GST. The definition of ‘employer’ in general parlance along with reference to various provisions under Companies Act, Employee’s Provident Fund and Miscellaneous Provisions Act, 1952 was made so as to justify that there was employer-employee relationship between the company and its directors.
 
However, the Hon’ble Rajasthan Authority for Advance Ruling, without discussing in detail the reference made to various provisions relied upon by the applicant under various Acts, held that the directors are not employee of the company and so are not covered by clause (1) of Schedule III to the CGST Act, 2017. Consequently, the company is liable to pay GST under reverse charge mechanism on the remuneration paid to its director in terms of serial no. 6 of the Notification No. 13/2017-Central Tax (Rate) dated 28.06.2017.
It is pertinent to mention that the above decision has been rendered without considering the fact that the remuneration paid to directors is considered as “salary” under the Income Tax Laws. It is submitted that it is settled principle that if Income Tax Department, a branch of Ministry of Finance has held the amount paid to director as salary, then the GST department, another branch of Finance Ministry cannot take a contrary stand. In this respect, reference may be made to decision given in the case of Rent Works India Pvt. Ltd. Vs Commissioner of C.Ex., Mumbai-V [2016 (43) S.T.R. 634 (TRI.-MUM)]. It is submitted that in the erstwhile service tax regime, it was held that when it is established by the company that the remuneration paid to directors is actually salary which is fortified by the Form-16 depicting TDS deduction under salary head under Income Tax Act and other compliances such as deduction of Professional Tax, EPF etc. indicate that directors are employees, then no service tax was payable by the company under reverse charge mechanism. Reference may be made to decision given in the case of M/s Allied Blenders and Distillers Pvt. Ltd. Vs CCE & ST, Aurangabad [2019 (24) G.S.T.L. 207 (TRI.-MUMBAI)]. Therefore, when the company has proved that obligations under various Acts indicate that the directors are employees of the company, a contrary stand cannot be taken by the GST department so as to fasten the liability to pay GST under reverse charge mechanism. Hence, in our opinion, the company is liable to pay GST under reverse charge mechanism only commission, rent etc. paid to directors which are consideration for various services rendered by directors other than their capacity of employees. Therefore, the above decisions pronounced by AAR’s will surely be reviewed by higher authorities in the days to come. Here it is worthwhile to mention that the decision of Advance Ruling is binding only on person seeking the same and it is not binding on other taxpayers. 
This is solely for educational purpose.

You can reach us at www.capradeepjain.com, at our facebook page on https://www.facebook.com/GSTTODAYBYPRADEEPJAIN/as well as follow us on twitter at https://www.twitter.com/@capradeepjain21.
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