Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *   CBIC issues draft rules for Customs valuation *  Top Headlines: Threshold for Benami deals, green bond investors, and more *  Govt aims 1-hour clearance for goods at all ports *  Exporters Allowed To Use RoDTEP, RoSCTL Scrips To Pay Customs Duty, Transfer Them; Rules Amended *  Millions of labourers to be affected by brick producers’ strike over hike in GST, coal rates *  Inauguration of ‘kendriya GST parisar’ *  Transporter can seek Release of Conveyance alone, not Goods under GST Act: Madras HC *  GST: Quoting of DIN Mandatory for Responding to Notice, Govt Modifies Portal *  Firms can soon file claims for GST credits of ?400 cr *  CBIC issues modalities for filing transitional credit under GST. *  Mumbai: Man creates 36 fake GST firms, arrested for input tax credit fraud of Rs 23 cr *  Report to restructure Commerce Ministry under study; idea is to set up trade promotion body: Goyal *  Firms can soon file claims for GST credits of ?400 cr *  Gambling Alert! Govt May Levy Up To 28% GST; UP, Bengal Back Move *  EPFO backs raising retirement age to ease pressure on pension funds *  India Moving Up Power Scale, Set to Become Third Largest Economy By 2030 *  Airfares Get Expensive: What Changes for Flyers From Today? *  IRCTC Latest News: Passengers to Pay More For Cancelling Confirmed Rail Tickets Soon. *  IBC prevails over Customs Act, says Supreme Court. *  As GST enters sixth year, a time for evaluation and reassessment *  There’s GST on daily essentials as Centre needs money to buy MLAs: Arvind Kejriwal *  Now, GST on cancellation of confirmed train tickets, hotel bookings *  GST kitty for top States could rise 20% in FY23, says Crisil *  French customs officials seize another cargo vessel over Russia sanctions *  TradeLens builds on Asia momentum with Pakistan Customs deal *  Hike tax on tobacco, reduce affordability & increase revenue: Civil society organizations to GST council *  Bihar: ?10 crore tax evasion on tobacco products detected in raids *  Centre failed on GST, COVID; would it be anti-national? Rajan on Infosys row *  Service Tax not Chargeable on Income Tax TDS portion paid by recipient: CESTAT grants relief to TVS *  Foreign portfolio investors make net investment of Rs 7575cr in Sep so far
Subject News *  Run-up to Budget: Monetary threshold for GST offences may rise to Rs 25 cr *   GST (Tax) E-invoice Must For Businesses With Over Rs 5 Crore Annual Turnover *   Both Central GST and excise duty can be imposed on tobacco, rules Karnataka high court *   CBIC Issues Clarification On Extended Timelines For GST Compliance *   CBIC Issues Clarification On Extended Timelines For GST Compliance *  Budget 2023- 9.6 crore gas connections *  GST: Tamil Nadu Issues Instructions for Assessment and Adjudication Proceedings *  GST: CBIC Extends Last Date for filing of ITC *  GST collection in September surpasses Rs 1.4 lakh crore for straight seventh time *  Dollar smuggling case: Customs chargesheet names M Sivasankar as key conspirator. *  Hike in GST rates fuels inflation *  Assam: CBI arrests GST commissioner in Guwahati *  GST fraud worth ?824cr by 15 insurance Cos detected *  India proposes 15% customs duties on 22 items imported from UK *  Decriminalising certain offences under GST on cards *  Surge in GST collections more due to higher inflation: India Ratings *  MNRE Notifies BCD and Hike in GST Rates as ‘Change in Law’ Events But With a Condition | Mercom India *   Solar projects awarded before customs duty change allowed cost pass-through *  Rajasthan High Court Dismisses Writ Petitions Challenging Levy Of GST On Royalty *   GST revenue in September likely at Rs 1.45 lakh crore *  Govt working on decriminalising certain offences under GST, lower compounding charge *  Building an institution like GST Council takes time, trashing is easy: Sitharaman *  GST collections in Sept may touch ?1.5 lakh crore *  KTR asks Centre to withdraw GST on handlooms *  After Gameskraft, More Online Gaming Startups To Receive GST Tax Claims *  Madras HC: AAR Application Filed Under VAT Does Not Survive After GST Enactment *  Threshold for criminal offences under GST law may be raised *  Bengaluru: Gaming company faces biggest GST notice of Rs 21,000 crore *  CBIC clarifies Classification of Cranes for GST, Customs Duty *  Customs seize gold hidden in bicycle in Kerala airport  

Comments

Print   |    |  Comment

GST UPDATE ON LANDMARK SUPREME COURT DECISION REGARDING SERVICE TAX ON CLUB PART-2

GST UPDATE ON LANDMARK SUPREME COURT DECISION REGARDING SERVICE TAX ON CLUB PART-2
We had discussed the landmark Supreme Court decision and the reasoning adopted by Apex Court for arriving at the conclusion in the said case in depth in our earlier update.  In the present update, we seek to discuss the applicability of the decision in GST regime.
 
Applicability of judgment in GST era: -The Service Tax Law has been repealed and it has been 2 years of implementation of GST. Now, the question arises is whether benefit of this Supreme Court decision will be available in the GST era or not? Before proceeding further, it is important to look at the relevant provisions of the Constitution of India. It is submitted that vide The Constitution (One Hundred and First Amendment) Act, 2016, a new article 246A has been inserted to enable the Central Government and the State Government (subject to clause 2) to make laws with respect to goods and services tax imposed. Hence, the power to collect GST on goods and services is being derived from the newly inserted Article 246A of the Constitution of India. At the same time, it is pertinent to mention that the other Articles which had relevance in the erstwhile regime are still prevalent as on date and have been referred by the judgment of the Supreme Court discussed by us. One such Article is 366(29A) pertaining to tax on sale or purchase of goods. It may be noted that certain entries of this Article are inconsistent with the entries of Schedule II of the CGST Act, 2017, for example, works contract being specified as service in Schedule II of the CGST Act, 2017 but the transfer of property in goods in the execution of works contract is covered under sale of goods as per Article 366(29A)(b) of the Constitution of India. Consequently, one may argue that the entries of Article 366(29A) have no relevance in GST Laws. If such an interpretation is taken, then too, the analogy drawn by the Supreme Court in the above cited decision will have persuasive value as the same was considered even while deciding leviability of service tax on services provided by club to its members whereas the provisions of Article 366(29A) pertain to sale or purchase of goods. Nonetheless, the other relevant provisions of the GST law are discussed for ascertaining the applicability of the above cited decision in GST era.
 
 The clause (e) of the defination of ‘business’ given under section 2(17) of the CGST Act, 2017 includes provision by a club, association, society or any such body (for a subscription or any other consideration) of the facilities or benefits to its members. The above provision indicates that the activity of club is treated as business.
 
However, if we observe the definition of supply given under section 7 of the CGST Act, 2017, we find that supply includes all forms of supply of goods or services or both such as sale, transfer, barter, exchange, licence, rental, lease or disposal made or agreed to be made for a consideration by a person in the course or furtherance of business. We submit that although it is not explicitly stated that supply should be made by one person to another, it is understood that supply involves two persons as sale/barter and other activities require at least two persons. It is further submitted that the definition of person is also given under section 2(84) of the CGST Act, 2017 which includes an association of persons or a body of individuals, whether incorporated or not, in India or outside India. We submit that the definition of person is similar to the Service Tax Laws and is wide enough to cover clubs/association of persons whether incorporated or not.
 
Before coming to any conclusion, it is also pertinent to make reference to entry no. 7 of Schedule II of the CGST Act, 2017 which reads as follows:-
 
7. Supply of Goods
The following shall be treated as supply of goods, namely:—
Supply of goods by any unincorporated association or body of persons to a member thereof for cash, deferred payment or other valuable consideration.
It is also worth noting that according to amendment made in section 7 of the CGST Act, a new sub-section (1A) has been inserted wherein certain activities or transactions which constitute a supply in accordance with the provisions of sub-section (1), they shall be treated either as supply of goods or supply of services as referred to in Schedule II. This has the effect that the transactions which are specified in Schedule II shall be treated as supply only if they are made by a person in course or furtherance of business for consideration. We submit that the definition of business includes clubs and so on harmonious reading of the entry 7 of Schedule II, it can be concluded that supply of goods by unincorporated association or body of persons to member for cash is liable to GST. However, it is also to be noted that there is no similar entry for supply of services. Moreover, now the question arises is that whether the interpretation of the term “body of persons” as taken by Supreme Court can be made applicable in GST or not? Well, in our opinion, the analogy of Supreme Court decision can be applied in GST regime too as the explicit mention of “unincorporated association or body of persons” indicates levy of GST only on unincorporated body of persons. Hence, we may say that the purport of the legislation under erstwhile indirect taxation regime is being carried forward in the GST regime also. However, doubt may be created as regards the relevance of doctrine of mutuality as definition of business expressly includes membership fees charged by every kind of club or association whether incorporated or not.  Nonetheless, it appears that the litigation baggage of erstwhile indirect taxation regime will continued in the GST era also after pronouncement of decision by the Supreme Court of India.
 
The content of this GST update is for educational purpose only and not intended for solicitation.
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