Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  Dept. Can’t Classify Product as Zarda Scented Tobacco After Repeatedly Approving It As Chewing Tobacco: CESTAT *  Mere Uploading Of GST Order On Portal Is Not “Valid” Service: Tripura HC *  CGST Can Proceed Even If SGST Closed Similar Case Earlier: Delhi HC *  SC upholds 28% GST on online gaming with retrospective effect. *  West Bengal Govt cuts E-way Bill Threshold limit to Rs. 50,000 for intra-state goods movement. *  Criminal Prosecution Under Central Excise Act Can’t Continue After CESTAT Sets Aside Duty Demand on Merits: Punjab & Haryana High Court. *  Madras High Court Quashes GST Assessment Orders for Denial of Personal Hearing; Remands Matter Subject to 10% Deposit *  Ex Parte GST Order: Madras High Court Directs Immediate Removal of Bank/ITC Attachment Upon 25% Deposit *  J.K. Cement Receives GST Demand Order of Rs 8,02,113/- from Ahmedabad Tax Authority *  Delhi Police EOW Busts Alleged Rs. 128 Crore GST Fake Invoice Network. *  REPLY TO SCN CAN’T BE TREATED AS “EMPTY FORMALITY”: ORISSA HIGH COURT QUASHES GST DEMAND OF RS. 57.30 LAKH *  Challenge to CGST Provisions restricting ITC to Bonafide Purchasers : Allahabad HC issues notice *  CBIC Notifies Revised Customs Tariff Values for Edible Oils, Gold, Silver, Brass Scrap and Areca Nuts *  Delhi HC Orders Removal of GST Attachment After Statutory 1 Year Period Expired *  GSTAT Extends Relaxed Appeal Filing Guidelines till December 31, 2026 *  AO fails to Provide Import - Export Data from DGFT to Taxpayer for Reconciliation *  Gold, Silver Imports To Get Costlier As Govt Raises Customs Duty To 10%  *  GSTAT Enables Pre-Payment Access to Document Upload and Checklist for GST Appeal Filing *  GST Portal Restrictions Can’t Override Statute: Gujarat HC Allows Cross-State Transfer Of CGST ITC After Amalgamation *  Centre Revises HS Codes for Large Diameter Steel Pipes Used in Oil & Gas Pipelines *  Customs Duty Liability Arises On Warehouse Clearance Date: Supreme Court *  Government lifts export ban on de-oiled rice bran *  CESTAT Grants 12% Interest on Pre-Deposit for Investigation from Date of Deposit till Refund and Denies Interest on Interest. *  Government Overhauls GST Classification Framework for Non-Alcoholic Beverages; Fruit Juice Drinks, Milk-Based Beverages and Caffeinated Drinks to Attract Revised 5% and 40% GST Rates from May 1, 2026 *  India’s gross GST collections hit a record Rs 2.42 lakh crore in April, up 8.7% *  Customs clearance stalled, revenue hit over MRP dispute *  Shipping Corporation explores Middle East routes as Hormuz tensions disrupt cargo movement *  India, Kenya signs MoU for exchange of pre-arrival customs information *  No demand of Taxes under Reverse Charge if Tax Already Discharged by Service Provider under forward charge *  The India-New Zealand Free Trade Agreement, signed "once-in-a-generation" deal that eliminates tariffs on 100% of Indian exports to New Zealand
Subject News *  Consignment Sales Can’t Be Reclassified as Inter-State Sales Based on Pre-Agreement Evidence: CESTAT *  Exporter Can’t Be Denied Advance Authorization Benefit Due To ICEGATE Technical Glitch: Delhi High Court *  No GST Demand For Mere Wrong Set-Off Of IGST Credit Under CGST And SGST Heads: Kerala HC. *  Cenvat Credit Can’t Be Denied on Input Services Having Nexus With Manufacturing Activities: CESTAT *  Pending Proceedings Can’t Survive Without Saving Clause: Calcutta High Court Quashes GST Demand of Rs. 6.28 Crore After Omission of Rule 96(10) *  Madras HC Quashes GST Demands on TASMAC (Tamil Nadu State Marketing Corporation) Bar Licence Fee *  GST Proceedings Cannot Survive Omitted Rule Without Saving Clause: Calcutta HC *  Provisional Release Can’t Be Denied Solely On Dept. Suspicion Of Misclassification And Undervaluation Of Imported Goods: CESTAT *  Businesses Should Not Be Kept Outside GST Regime Without Due Process: Gauhati High Court *  Punjab & Haryana HC Directs Reconsideration of Contractors’ Claim for Additional GST Payment After Tax Rate Hike From 12% to 18% *  S. 108 Statements Can’t Be Sole Basis Without Following Section 138B Procedure: CESTAT *  Bombay High Court Frames Key Questions on Mandatory Distribution of ITC U/s 20 CGST Act *  Filing of Annexure-B for Refund Applications involving Accumulated ITC using the offline utility in GST portal: GSTN *  No Service Tax on Parent Company’s Un-Invoiced Cost Allocations Without Actual Service or Consideration: CESTAT  *  Calcutta High Court Upholds GST Classification of Polypropylene Leno Bags as Plastic Products *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  GSTAT Issues Major Bench Allocation Framework; All Appeals to First Go Before Division Bench *  ITC Blocking Without Reasoned Order Violates Rule 86A; Punjab & Haryana HC Directs Release of Credit *  Allahabad HC Refuses Bail to CGST Superintendent In Rs. 70 Lakh Bribery Case *  S.130 Can’t Be Invoked Without Prior Tax Determination U/s 73/74: Allahabad High Court Quashes GST Confiscation Proceedings *  SC grants Bail to Rs 54cr GST case  *  Karnataka HC Sets Aside Duplicate GST Orders, Orders Fresh Hearing on GSTIN Cancellation *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  Transfer Of Unutilized ITC After Amalgamation - Supreme Court Issues Notice *  PUNJAB & HARYANA HC QUASHES GST CANCELLATION NOTICE FOR FAILURE TO PROVIDE CBIC ENQUIRY REPORT *  LICENSE FEE, TECHNICAL ASSISTANCE CHARGES NOT INCLUDIBLE IN CUSTOMS VALUE UNLESS THEY ARE A CONDITION OF SALE: CESTAT *  DELHI HC ORDERS REMOVAL OF GST ATTACHMENT AFTER STATUTORY 1 YEAR PERIOD EXPIRED *  CUSTOMS BROKER CAN’T BE FAULTED JUST BECAUSE EXPORTER’S GST REGISTRATION WAS PREVIOUSLY CANCELLED: CESTAT   *  Supreme Court Dismisses Review Plea Against Delhi HC Ruling Holding Real Operator Behind Fake GST Firms Liable As ‘Taxable Person  *  GST Appeal Can’t Be Rejected Merely Because DRC-07 Was Not Uploaded On Portal: Bombay High Court  

Comments

Print   |    |  Comment

PJ/Case Study/2020-21/162
21 August 2020

Whether RCM is applicable on the services provided by the director in his individual capacity to the company?
M/s Paras Mool Chand Chattar Hospital Private Limited (OIA No. 586(CRM)ST/JDR/2019 dated 19.06.2019
 
Issue involved: Whether RCM is applicable on the services provided by the director in his individual capacity to the company?
Brief Facts: The appellant is engaged in providing services namely renting of immovable property service, Security / Detective agency service as defined under section 65 (8) And 65 of the Finance Act, 1994 and holding service tax registration number AABCP2822PAD001. It was found that the appellant has taken immovable property on rent from the director of the company under ‘Renting of immovable property service’ and a paying rent to the director. The adjudicating authority vide impugned Order has confirmed the demand of Rs.189300/– along with interest and also imposed penalty of Rs.1 89300/– under section 78 of the finance act, 1994 under the provisions of reverse charge mechanism introduced vide notification number 30/2012-ST and 45/2012-ST dated 07.08.2012.
 
Applicant’s Contention:The assesse has contended in the following manner
  1. That the demand in impugned SCN Is for the period from 2011-12 to 2016–17. The vacant land is given by Mr. Mool Chand Chatter To the appellant and it was contended by appellant that as per clause b of section 65(105) (zzz), immovable property does not include vacant up to 30.06.2012.
  2. That impugned OIO clearly mentioned that the notification number 45/2012 dated 07.08.2012 has brought the reverse charge on director. Hence the demand for the period from 2011–12 as well as for the period from 01.04.2012 207.08.2012 under reverse charge cannot be issued to the appellant.
  3. That all the services provided by director to the company are covered under reverse charge mechanism in his capacity of the director in his professional capacity whereby there is no such services provided in the capacity of director but in the capacity of the land owner. That the entry in the notification simply mention services provided by a director of a company and does not specify services provided by a director of company in his individual capacity too. Consequently, the services provided by director of company to the company in his professional capacity are only covered under reverse charge mechanism.
Appellant relied on the case of British Airways PLC v/s UIO [2002(139) ELT6(SC) (ii) CCE, Mumbai-V v/s M/s GTC Industries Ltd. [ 2008-TIOL-1634-CESTAT-MUM-LB].
  1. That the complete demand is barred by time of limitation. The demand for the period from 2011–12 to 2015–16 is issued on 02.08.2017. The extended period can be invoked for maximum five years. Hence, the demand for the period 2011–12 is clearly time-barred.
  2. That extended period of limitation is not invocable in the present case because the dispute pertains to interpretation of law. In this regard, the appellant submitted that the allegation that the issue does not pertain to interpretation of law is totally erroneous.
  3. That no penalty in a case in a case of interpretation in nature. Appellant relied on the case of M/s ITEL Industries Ltd. vs CCE, Calicut [2010-TIOL-236- CESTAT-BANG] = [2010(251) ELT 429 ( TRI-BANG )]. In the case of M/s Hindustan Lever Ltd. v/s CCE, Lucknow [ 2009-TIOL-1795-CESTAT-DEL].
 
Reasoning of judgement: The Commissioner(Appeals) concluded that services provided by the director to the company have been brought under the reverse charge vide notification number 45/2012 dated 07.08.2012, hence the demand on the rent of immovable property for the period from 2011–12 as well as for the period from 01.04.2012 207.08.2012 under reverse charge is not maintainable.
Moreover, all the services provided by directed to the company are covered under reverse charge mechanism in his capacity of the director in his professional capacity whereby there is no such services provided in the capacity of director but in the capacity of the land owner. Entry 5A of Notification number 30/2012 – ST dated 20.06.2012 as amended by notification number 45/2012 – ST dated 07.08.2012 which is as under:-
S.No. Description of Service %age of service tax payable by the person providing service %age of service tax payable by the person liable for paying service tax other than the service provider
5A In respect of service provided or agreed to be provided by a director of a company or a body corporate to the said company or the body corporate. NIL 100%
Consequently, the services provided by director of a company to the company in his professional capacity are only covered under reverse charge mechanism.
The appellant contended that the appellant has taken immovable property on lease from its directors against which rent is paid. The amount of rent is not a part of remuneration as a director. Moreover, it was fixed in advance. This rental income has nothing to do with consideration against services as director of company. The law, as it stands, is very clear that service tax has to be paid by the person liable to pay in terms of section 68(1) and 68(2) and there cannot be any deviation from the statutory provisions.
 The words used in the rules are by a director of a company to the said company and not by a person who is director of a company. Therefore, services provided in the capacity of a director alone would be subject to service tax. In other cases, it would not fall under the category of reverse charge in terms of notification number 30/2012 – ST dated 20.06.2012.
Moreover, the rent agreement entered into by both the parties that it doesn’t speak about renting of the property by the director of the company in any sense and therefore, the service tax has to be paid by the person who has given the property on rent and the company is not liable to pay the service tax. Therefore, notification number 30/2012 –ST dated 20.06.2012 is not applicable in the present case. The agreement did not mention the appellant as director of the company.
Decision:  The appeal has been passed in favour of the appellant and the order of the adjudicating authority has been set aside.
Conclusion: Payment under RCM on the directors renumeration and other ancillary activities has been a matter of dispute in GST also. After contradictory advance rulings in GST regime on this matter, Government issued Circular No. 140/10/2020 – GST dated 10th June, 2020 specifying that payment booked as “Salary” in books of accounts of the company and on which TDS is deducted u/s 192 of Income Tax Act, then, such payment is covered under schedule III of CGST Act, 2017 and no GST is applicable on such payment.
Payment made other than “Salary” and TDS on which is deducted under section 194J of Income Tax Act, 1961, then, company is liable to pay GST on such payment under RCM. In the current regime also, the words used in the notification 13/2017-Central Tax(Rate) are by a director of a company to the said company and not by a person who is director of a company. Therefore, services provided in the capacity of a director alone should be subjected to GST. 
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