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Subject News *   Delhi HC Quashes Order, Says Reminder Cannot Validate Improperly Served GST SCN *  KARNATAKA HIGH COURT REMANDS GST SHORTFALL MATTER DUE TO ABSENCE OF PERSONAL HEARING   *  CESTAT cancels confiscation and penalties on imported computer cabinet cases: Custom duty restricted to 111 surplus units *  Deposit of tax during search or investigation cannot be treated as 'Voluntary Payment' : Bombay High Court *  Section 76 of the CGST cannot be invoked where the tax has already been duly deposited, even if through another registration of the same entity: Madras High Court *  Sec 74 allows use of material regardless of source; illegality or flaws in section 67 search do not vitiate valid adjudication: HC *  Inter-State transfer of ITC on Amalgamation permissible as given under section 18(3) read with rule 41 of the CGST rules, 2017: Gujarat High Court *  HC: No GST on commisson paid to Pigmy Agents *  IGST refund denial on illegible bill of lading invalid absent chance to furnish docs; merit reconsideration in appeals directed: HC *  ITC is not admissible on GST paid on leasehold rights of land used fpr setting up an air seperation plant: AAAR,Tamil Nadu *  GST: No penalty under Section 74 after voluntary ITC reversal due to non-existent supplier : High Court *  TN AAAR denies GST ITC on Land Lease under Sec. 17(5)(d) for setting up plant and machinery *  GST proceedings quashed as notices sent to old address, despite updated address in registration *  Importer Can’t Be Penalised for Alleged IGCR Procedural Lapses Without Evidence of Departmental Error: CESTAT *  Structured Healthcare Training Not ‘Charitable Activity’, 18% GST Payable: AAR  *  CESTAT As The Appellate Authority For Central Sales Tax Disputes: A Paradigm Shift Under Finance Act, 2023 *   Rs. 25K Cost Imposed On SGST Joint Commissioner for Attaching Bank  Accounts Without Forming Mandatory “Opinion”: Bombay HC *   Ex-Parte GST Order Without Hearing Violates Natural Justice: Karnataka  High Court Quashes Adjudication and Bank Attachment.  *   Retrospective GST Cancellation Can’t Invalidate Genuine Transactions:  Jaipur Commissioner (Appeals) Quashes Rs. 95,670 ITC Demand. *   GST Pre-Deposit Non-Compliance: Allahabad High Court Allows Appeal  Subject to Rs. 30 Lakh Balance Deposit, Recognises Offline Filing. *  Documentary Nature of Evidence: Allahabad High Court Grants Bail in Rs. 32.66 Crore Fake ITC Fraud Case *  Supreme Court Flags Systemic Bias in Army’s Permanent Commission Process for Women Officers *  Re-Determination of Land Compensation Can Be Based on Appellate Court Awards, Clarifies Scope of S. 28-A: Supreme Court. *  Supreme Court Imposes Rs. 5 Lakh Costs On Rent Authority Officer For Acting Beyond Jurisdiction. *  DGGI Meerut | Court Denies Bail to Accused in Claiming Fake ITC And Export Refunds *  Denial of GST Rate Revision Benefit to Contractor Violates Article 14: Rajasthan HC *  GST Registration Cancellation for Non-Filing of Returns: Gauhati High Court Directs Restoration on Compliance. *   Supreme Court Quashes FEMA Adjudication Orders, Revives Proceedings at  Show Cause Stage. *   Higher Rank, Harsher Punishment Justified: Supreme Court Restores Dismissal  of Bank Manager in Misappropriation Case. *   Limitation for Export Refund to Be Counted from Foreign Exchange Realisation,  Not From Export Invoices Issuance: CESTAT  

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GST UPDATE ON GTA SERVICES

GST UPDATE ON GTA SERVICES

GST UPDATE ON GTA SERVICES

In terms of notification no. 11/2017-Central Tax (Rate) dated 28.06.2017 as amended by notification no. 20/2017- Central tax (Rate) dated 22.08.2017, services of goods transport agency (GTA) in relation to transportation of goods (including used household goods for personal use) attracts GST @5% (under reverse charge mechanism) or 12% (under forward charge).

Option 1:- Applicability of Reverse Charge at 5%

The liability of transportation services provided by GTA at GST 5% is to be discharged by the recipient under reverse charge mechanism, subject to the condition that credit of input tax charged on goods or services used in supplying the service has not been taken. The Explanation to the notification further clarifies that it shall mean that,-

a) credit of input tax charged on goods or services used exclusively in supplying such service has not been taken; and

b) credit of input tax charged on goods or services used partly for supplying such service and partly for effecting other supplies eligible for input tax credits, is reversed as if supply of such service is an exempt supply and attracts provisions of subsection (2) of section 17 of the Central Goods and Services Tax Act, 2017 and the rules made there under.

Further, the recipient of GTA service discharging the tax liability is entitled to take Input Tax Credit (ITC) of the amount of tax paid under reverse charge provided it is used in the course or furtherance of business at his end.

Option 2:- Applicability of Forward Charge at 12%

As per Notification No. 20/2017 – CT (Rate) dated 22.08.2017, GTA is allowed to take ITC subject to condition that they should discharge GST liability @12% under forward charge. Further the recipient would be eligible for ITC of the GST paid by GTA on forward charge basis.

Ambiguity regarding the credit not availed during the period of 01.07.2017 to 21.08.2017 on availing the option to discharge liability under forward charge at 12%

However, many transporters have changed their practice after receiving option of charging GST at 12% along with input tax credit from 22.08.2017, but before this option liability under GST was discharged under reverse charge basis by the service recipient. Now, the question arises on the availability of the credit on inputs/capital goods held in stock as on 21.08.2017 on discharging liability at 12% under forward charge on transportation services.

In the CGST Act, under section 18(1)(d) the credit is allowed when a registered taxable person comes out of exemption which is as follows:

(d) where an exempt supply of goods or services or both by a registered person becomes a taxable supply, such person 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 on capital goods exclusively used for such exempt supply on the day immediately preceding the date from which such supply becomes taxable:

Provided that the credit on capital goods shall be reduced by such percentage points as may be prescribed.

There is separate form for the same also. But there is no clarification as regard the fact whether GTA is allowed to take credit on stock of inputs and on capital goods when GTA shifts from lower rate of GST to higher rate of GST with a change in condition of availment of credit.

However, in notification no. 11/2017-CT (Rate) dated 28.06.2017 and explanation has been added with the condition which is as follows:

(iv) Wherever a rate has been prescribed in this notification subject to the condition that credit of input tax charged on goods or services used in supplying the service has not been taken, it shall mean that,-

a. credit of input tax charged on goods or services used exclusively in supplying such service has not been taken; and
b. credit of input tax charged on goods or services used partly for supplying such service and partly for effecting other supplies eligible for input tax credits, is reversed as if supply of such service is an exempt supply and attracts provisions of sub-section (2) of section 17 of the Central Goods and Services Tax Act, 2017 and the rules made there under.

Thus, the above provision indicates that the GTA service with the GST rate of 5% with the condition of non-availment of credit would be considered as exempt supply for the purpose of reversal under section 17(2) of the CGST Act, 2017 read with Rule 42 & 43 of the CGST Rules. However, the definition of ‘exempt supply’ under section 2(47) as provided in the CGST Act, does not includes within its ambit supply with GST rate of 5% with the condition that no cenvat credit has been taken. Consequently, the question arises that whether the benefit of section 18(1)(d) of the CGST Act, 2017 can be availed by GTA service provider opting from 5% to 12% GST rate? In our opinion, the provision contained in notification 11/2017 is specific and cannot be made applicable for the purpose of availing benefit under section 18(1)(d) of the CGST Act, 2017. Thus, it is a matter of dispute and needs to be resolved at earliest.

The content of this GST update is for educational purpose only and not intended for solicitation.

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