Goods sent on Approval (Sec 31(7) of CGST act)

Where goods are sent on approval basis, an invoice would not be required at the time of removal of goods, and shall be issued only at the time of receipt of approval from the recipient.

Notwithstanding anything contained in sub-section (1), where the goods being sent or taken on approval for sale or return are removed before the supply takes place, the invoice shall be issued before or at the time of supply or six months from the date of removal, whichever is earlier.

Section 31 A: Facility of digital payment to recipient

The Government may, on the recommendations of the Council, prescribe a class of registered persons who shall provide prescribed modes of electronic payment to the recipient of supply of goods or services or both made by him and give option to such recipient to make payment accordingly, in such manner and subject to such conditions and restrictions, as may be prescribed.

Continuous of Supply of goods and Services


Continuous Supply” in context of GST laws in India and discuss about how GST shall be levied on goods & services which falls under the continuous supply. The term “Continuous Supply” has been defined by Section 2(32) & 2(33) of the CGST Act, 2017.

In case of continuous supply of goods, where successive statements of accounts or successive payments are involved, the invoice shall be issued before or at the time each such statement is issued or, as the case may be, each such payment is received.

As per Section 2(32) of CGST Act, ‘Continuous Supply of Goods’ means:

  • A supply of goods which is provided or agreed to be provided, continuously or on recurrent basis.
  • Under a contract
  • Whether or not by means of a wire, cable, pipeline or other conduit.
  • For which the supplier invoices the recipient on a regular or periodic basis.
  • Includes supply of goods as notified by the Government.

‘Continuous Supply of Goods’ have five important elements:

(a) There should be a supply of goods on a continuous or recurrent basis. The word ‘recurrent’ means frequently or regularly. Thus, we can interpret that where there is an agreement to supply an agreed quantity of goods over a period of time in multiple consignments to a customer, it would be treated as continuous supply of goods.

(b) The supply should be under a contract. However, the contract need not be in writing.

(c) Supply of goods may be done by means of a wire, cable, pipeline or conduit. The words “Whether or not” in the definition shows that the above list is only illustrative. The supplier may deliver goods through other transport means to be treated as a continuous supply.

(d) The supplier invoices the customer on a regular or a periodic basis as agreed between them.

(e) The Government may notify or specify any goods supply of which shall be treated as continuous supply of goods.

Continuous Supply of Services Under GST:

Continuous supply of services” means a supply of services which is provided, or agreed to be provided, continuously or on recurrent basis, under a contract, for a period exceeding three months with periodic payment obligations and includes a supply notified as being a continuous supply of services. In case of continuous supply of goods, the invoice has to be issued before or at the time of each of the successive statements is issued or each of the successive payments are received. Similarly, in case of a continuous supply of services the invoice has to be issued.

  • Where the due date of payment is ascertainable from the contract, the invoice must be issued on or before the due date of payment;
  • Where the due date of payment is not ascertainable from the contract, the invoice must be issued before or at the time when supplier of service receives payment;
  • Where the payment is linked to the completion of an event, the invoice should be issued on or before the date of completion of that event.

Time of issuing of tax invoice for continuous supply of services

When the due date of payment can be identified from the contract

The invoice will be issued before or after the payment is to be made by the recipient but within specified time. Invoice will be issued, whether or not any payment has been received by the supplier. For example, telecom service provider sends telephone bill every month. This is mentioned in the contract with the telecom company.

When the due date of payment is cannot be identified from the contract

The invoice shall be issued before or after each time when the supplier of service receives the payment but within specified time.

When the payment is linked to the completion of an event

The invoice shall be issued before or after the time of completion of that event but within specified time.

When the supply of services ceases under a contract before the completion of the supply

The invoice shall be issued at the time when the supply ceases and such invoice shall be issued to the extent of the service provided before stopping. For example, a works contract starting on 1st August 2017 was due for completion in March 2018. But it was stopped on 11th Nov 2017. The contractor will issue an invoice on 11th November 2017 to the extent of work performed.

Specified Time

The invoice must be issued within 30 days from the date when each event, specified in the contract and requiring the recipient to make any payment, is completed.

If the supplier of service is a bank/financial institution/NBFC

The invoice must be issued within 45 days from the date of supply of service. The Centre or a State Government may notify the supply of goods or services to be treated as continuous supply of goods or services.

Issue of Invoice by the Supplier (Sec 31(1) and (2) of CGST act)

Tax Invoice in respect of Goods:

Section 31(1) A registered person supplying taxable goods shall issue a tax invoice.

The invoice shall be issued before or at the time of removal of goods for supply to the recipient.

Where the supply does not involve the movement of goods, the invoice shall be issued when goods made available to the recipient.

Removal”, in relation to goods, means dispatch of the goods for delivery by the supplier or collection of the goods by the recipient.
Proviso to section 31(1) Central/State Government may, on the recommendation of the GST Council, by notification, specify the categories of goods and/or supplies in respect of which the tax invoice shall be issued,

Tax Invoice in respect of Services:

Section 31(2)

 

Rule 47

first proviso to Rule 47

Second proviso to Rule 47

 

 

 

A registered taxable person supplying taxable services shall, before or after the provision of service but within a prescribed period, issue a tax invoice, showing the description, value, the tax charged thereon, and such other particulars as may be prescribed.

Time limit for issuing tax invoice for services

The invoice in case of a taxable supply of services shall be issued within a period of thirty days from the date of the supply of service.

A banking company or a financial institution, or NBFC, can issue an invoice within forty-five days from the date of supply of service.

An insurer/banking company / financial institution, including a non-banking financial company/ Telecom operator, or any other class of supplier of services as may be notified by the Government making taxable supplies of services between distinct persons as specified in Section 25, may issue the invoice before or at the time recording the same in books of account or before the expiry of the quarter during which the supply was made.

Rule 46 Contents of Tax invoice: Tax invoice issued by the registered person in respect of goods and services shall be containing the following particulars:

(a) Name, address, and GSTIN of the Supplier
(b) The tax invoice number shall consist of a consecutive serial number not exceeding sixteen characters, in one or multiple series, containing alphabets or numerals or special characters- hyphen or dash and slash symbolized as “-” and “/” respectively, and any combination thereof, unique for a financial year.
(c) Date of issue of tax invoice
(d ) Name, address, and GSTIN of the Recipient
(e) Taxable supply of Rs 50000/- or more to the unregistered recipient; Name, address of the recipient, address of delivery, name of State, and its code.
(f) In the case of taxable supply is less than Rs 50000, the above details in tax invoice are required only if the recipient requests it.
(g)

First proviso to Rule 46.

HSN code of goods or Accounting Code of services:

CBI&C can give relaxation in indicating the number of digits of HSN /SAC code for the class of registered persons.

(h) Description of goods or services
(i) Quantity & unit of measurement (in case of goods).
(j) The total value of the supply of goods or services or both
(k) The taxable value of the supply of goods or services or both
(l) Rate of tax (Central Tax, State Tax, Integrated Tax, Union Territory Tax or cess)
(m) Amount of tax charged in respect of taxable goods or services (central tax, State tax, integrated tax, Union territory tax or cess)
(n) Place of supply along with the name of State, provided for penalty up to Rs 25000 in case of failure to mention these details in the tax invoice.
(o) Address of delivery where the same is different from the place of supply [In case of a bill to ship to transactions]
(p) Whether the tax is payable on a reverse charge basis
(q)

Fifth proviso to rule 46

The signature or digital signature of the supplier or his authorized representative

The signature or digital signature of the supplier or his authorized representative shall not be required in the case of issuance of an electronic invoice in accordance with the provisions of the Information Technology Act, 2000.

Sixth proviso to rule 46 The government may specify that tax invoice shall have Quick Response (QR) Code, subject to conditions and restrictions as may be specified

Invoices for Exports or Supplies to SEZ

Third proviso to Rule 46 In the case of exports of goods or services or supplies to SEZ unit or developer, the invoice shall carry an endorsement as follows:

Supply meant for Export/ Supply to SEZ/ SEZ Developer for authorized operation on Payment of Integrated Tax.

or

Supply meant for Export/ Supply to SEZ/ SEZ Developer for authorized operation on Payment of Integrated Tax under Bond or Letter of Undertaking without payment of Tax.

In addition to the other requisite details, the invoice shall contain the name of the Country of Destination.

Time of Supply (Sec 31 of CGST act)

Provisions under Section 31 of the Central Goods and Services Tax (CGST) Act, 2017 relating to “Tax Invoice”, are as under:

(1) A registered person supplying taxable goods shall, before or at the time of,

a) Removal of goods for supply to the recipient, where the supply involves movement of goods; or

(b) Delivery of goods or making available thereof to the recipient, in any other case, issue a tax invoice showing the description, quantity and value of goods, the tax charged thereon and such other particulars as may be prescribed:

Provided that the Government may, on the recommendations of the Council, by notification, specify the categories of goods or supplies in respect of which a tax invoice shall be issued, within such time and in such manner as may be prescribed.

(2) A registered person supplying taxable services shall, before or after the provision of service but within a prescribed period, issue a tax invoice, showing the description, value, tax charged thereon and such other particulars as may be prescribed:

Provided that the Government may, on the recommendations of the Council, by notification and subject to such conditions as may be mentioned therein, specify the categories of services in respect of which:

(a) Any other document issued in relation to the supply shall be deemed to be a tax invoice; or

(b) Tax invoice may not be issued.

(3) Notwithstanding anything contained in sub-sections (1) and (2):

(a) A registered person may, within one month from the date of issuance of certificate of registration and in such manner as may be prescribed, issue a revised invoice against the invoice already issued during the period beginning with the effective date of registration till the date of issuance of certificate of registration to him;

(b) A registered person may not issue a tax invoice if the value of the goods or services or both supplied is less than two hundred rupees subject to such conditions and in such manner as may be prescribed;

(c) A registered person supplying exempted goods or services or both or paying tax under the provisions of section 10 shall issue, instead of a tax invoice, a bill of supply containing such particulars and in such manner as may be prescribed:

Provided that the registered person may not issue a bill of supply if the value of the goods or services or both supplied is less than two hundred rupees subject to such conditions and in such manner as may be prescribed;

(d) A registered person shall, on receipt of advance payment with respect to any supply of goods or services or both, issue a receipt voucher or any other document, containing such particulars as may be prescribed, evidencing receipt of such payment;

(e) Where, on receipt of advance payment with respect to any supply of goods or services or both the registered person issues a receipt voucher, but subsequently no supply is made and no tax invoice is issued in pursuance thereof, the said registered person may issue to the person who had made the payment, a refund voucher against such payment;

(f) A registered person who is liable to pay tax under sub-section (3) or sub section (4) of section 9 shall issue an invoice in respect of goods or services or both received by him from the supplier who is not registered on the date of receipt of goods or services or both;

(g) A registered person who is liable to pay tax under sub-section (3) or sub section (4) of section 9 shall issue a payment voucher at the time of making payment to the supplier.

(4) In case of continuous supply of goods, where successive statements of accounts or successive payments are involved, the invoice shall be issued before or at the time each such statement is issued or, as the case may be, each such payment is received.

(5) Subject to the provisions of clause (d) of sub-section (3), in case of continuous supply of services:

(a) Where the due date of payment is ascertainable from the contract, the invoice shall be issued on or before the due date of payment;

(b) Where the due date of payment is not ascertainable from the contract, the invoice shall be issued before or at the time when the supplier of service receives the payment.

(c) Where the payment is linked to the completion of an event, the invoice shall be issued on or before the date of completion of that event.

(6) In a case where the supply of services ceases under a contract before the completion of the supply, the invoice shall be issued at the time when the supply ceases and such invoice shall be issued to the extent of the supply made before such cessation.

(7) Notwithstanding anything contained in sub-section (1), where the goods being sent or taken on approval for sale or return are removed before the supply takes place, the invoice shall be issued before or at the time of supply or six months from the date of removal, whichever is earlier.

Composite and Mixed Supplies (Sec 8 of CGST act)

The tax liability on a composite or a mixed supply shall be determined in the following manner, namely:

(a) A composite supply comprising two or more supplies, one of which is a principal supply, shall be treated as a supply of such principal supply.

(b) A mixed supply comprising two or more supplies shall be treated as a supply of that particular supply which attracts the highest rate of tax.

Composite Supply

(Tax rate is applicable the tax rate of Principal Supply)

As per section 2(30) “composite supply” means a supply made by a taxable person to a recipient consisting of two or more taxable supplies of goods or services or both, or any combination thereof, which are naturally bundled and supplied in conjunction with each other in the ordinary course of business, one of which is a principal supply;

Comprising

  • Two or more Taxable Supplies,
  • Which are naturally bundled and supplied in conjunction with each other,
  • in the ordinary course of business,
  • One of which is a Principal supply.

It should be a combination of two or more goods or services or both, and this combination is normally supplied by the industry to its customers in the ordinary course. The most important thing is one supply among these should be Principal supply and other supplies depended on that main Principal supply.

Mixed Supply

(Tax rate is applicable the higher tax rate)

Comprising

*As per sec 2(74) “mixed supply” means two or more individual supplies of goods or services, or any combination thereof, made in conjunction with each other by a taxable person for a single price where such supply does not constitute a composite supply.

*Individual Supplies means independent supplies of each other and are not naturally bundled.

Location of Supplier of Goods and Services

In a GST invoice, the location of supplier and location of recipient play an important role in the determination of the applicability of IGST or CGST and SGST. If the supply is inter-state, IGST would be applicable. If the supply is intra-state, CGST and SGST would be applicable. In this article, we look at how to determine the location of the supplier and location of the recipient as per rules provided in the GST Act.

Location of supplier is usually where a supply is made from, a place mentioned as a principal place of business on the GST registration certificate. In case the supplier distributes the supplier apart from the places as mentioned on the GST registration certificate, the supplier can use the location of a place mentioned on the GST registration certificate.

If the supplier makes the supply from more than one location, the supplier can treat the location of the supplier which directly reflects the concerned supply. If the supplier is unable to determine the place of supply, the concerned individual shall use the usual place of residence of the supplier as the location of the supplier on the GST invoice.

Recipient

Recipient of the supply of goods or services is someone who is liable for payment of consideration for the supply of goods or services. If no consideration is payable, the person to whom the goods are delivered or made available, or uses the goods or services shall apply as the recipient. The word recipient shall also apply to the reference to an agent acting on behalf of a recipient.

Importance of Place of Supply

Wrong classification of supply between interstate or intra-state and vice-versa may lead to hardship to the taxpayer as per section 19 of IGST Act and section 70 of CGST Act

Where wrong taxes have been paid on the basis of the wrong classification, a refund will have to be claimed by the taxpayer

The taxpayer will have to pay the correct tax along with interest for the delay on the basis of revised/correct classification.

Also, correct determination of place of supply will help us in knowing the incidence of tax. As if the place of supply is determined as a place outside India, then tax will not have to be paid on that transaction.

Supply Type Place of Supply
Involves movement of goods, whether by supplier, or buyer or by any other person Location of the goods when the movement of goods terminates for delivery to the recipient.
Goods are delivered by the seller to the buyer on the directions of a third party (whether or not an agent), before or during the movement of goods, by the way of transfer of title in goods or the documents or some other way It is assumed that the third person has received the goods and therefore, the place of supply of the goods will be the principal place of business of the third party.

Determining The Place Of Supply Of Services

GST is destination-based tax i.e consumption tax, which means tax will be levied where goods and services are consumed and will accrue to that state. Under GST, there are three levels of Tax, IGST, CGST & SGST and based on the ‘’place of supply’’ so determined and the location of the supplier, the respective tax will be levied.

IGST is levied where the transaction is inter-state, and CGST & SGST are levied where the transaction is intra-state. For understanding the place of supply for services, the following two concepts are very important namely:

  • Location of the recipient of services
  • Location of the supplier of services

Location of the Recipient of Services

Case Location of Recipient of Service
where a supply is received at a place of business for which the registration has been obtained such place of business
where a supply is received at a place other than the place of business for which registration has been obtained (a fixed establishment elsewhere) such fixed establishment
where a supply is received at more than one establishment, whether the place of business or fixed establishment the location of the establishment most directly concerned with the receipt of the supply
in absence of such places the location of the usual place of residence of the recipient;

Location of the provider/Supplier of services

Case Location of Supplier of Services
where a supply is made from a place of business for which the registration has been obtained the location of such place of business
where a supply is made from a place other than the place of business for which registration has been obtained (a fixed establishment elsewhere) the location of such fixed establishment;
where a supply is made from more than one establishment, whether the place of business or fixed establishment, the location of the establishment most directly concerned with the provision of the supply
in absence of such places, the location of the usual place of residence of the supplier;

Domestic Transactions

These are the transactions where both the parties i.e the supplier as well as the recipient of service are in India. Domestic transactions can be further categorised as below:

  • Inter-State (i.e between two different states)
  • Intra-State (i.e within the same state)

International Transactions

These are the transactions where either the service recipient or the provider is outside India. Transactions in which both the recipient as well as a provider are outside India are not covered here.

General Rule: The Place of supply for services treated as international transactions shall be:

  • The location of the service recipient
  • In the case where the location of the service recipient is not available, the place of supply shall be the location of the supplier.

Meaning and Scope of supply (Section 7 Subsection 1,2 and 3)

The taxable event in GST is supply of goods or services or both. Various taxable events like manufacture, sale, rendering of service, purchase, entry into a territory of State etc. have been done away with in favour of just one taxable event i.e. supply. The constitution defines “Goods and Services tax” as any tax on supply of goods, or services or both except taxes on the supply of the alcoholic liquor for human consumption.

The term, “Supply” has been inclusively defined in the Act. The meaning and scope of supply under GST can be understood in terms of following parameters, which can be adopted to characterize a transaction as supply:

  • Supply of goods or services or both (Supply of anything other than goods or services does not attract GST).
  • Supply should be made for a consideration.
  • Supply should be made in the course or furtherance of business.
  • Supply should be a taxable supply.

[Sec. 7(1)(a)]

All forms of supply of goods and/or services such as:

  • Sale: Transferring the property in goods from one to another, upon valuable consideration
  • Transfer: Any transfer of goods or right in goods or of undivided share in goods without transfer of title thereof.
  • Barter: To exchange one commodity for another without use of money.
  • Exchange: To swap, to part with, give or transfer for an equivalent with the use of money.
  • License: Permission granted by competent authority to exercise certain privileges without such authorization the activity would have constituted as an illegal act.
  • Rental: Periodical payment for the use of another property.
  • Lease: Contractual agreement by which one party conveys an estate in property to another party, for a limited period, subject to various conditions, in exchange for something of value, but still remain ownership.
  • Disposal: To pass or into the control of someone else; to alienate, bestow, or part with.

Import of services [Sec. 7(1)(b)]

Import of services for a consideration whether or not in the course or furtherance of business:

Analysis:

  • Import of goods is dealt separately under the Customs Act, 1962, wherein IGST shall be levied as additional duty of customs in addition to basic customs duty under the Customs Tariff Act, 1975.
  • Persons importing services for personal purposes shall also be liable to GST on reverse charge basis.
  • It should be noted that there is no threshold limit in reverse charge.
  • This is an exception of supply in the course or furtherance of business.

Supply without consideration [Sec. 7(1)(c)]

The activities specified in Schedule I, made or agreed to be made without a consideration.

Whether activity to be treated as Supply of goods or supply of services [Sec. 7(1)(d)]

The activities to be treated as supply of goods or supply of services as referred to in Schedule II.

Nor supply of goods or services [Sec. 7(2)]

Notwithstanding anything contained in sub-section (1)

(a) Activities or transactions specified in Schedule III.

(b) Such activities or transactions undertaken by the Central Government, a State Government or any local authority in which they are engaged as public authorities, as may be notified by the Government on the recommendations of the Council, shall be treated neither as a supply of goods nor a supply of services.

Issue of Notification by Government [Sec. 7(3)]

Subject to the provisions of sub-sections (1) and (2), the Government may, on the recommendations of the Council, specify, by notification, the transactions that are to be treated as:

(a) A supply of goods and not as a supply of services.

(b) A supply of services and not as a supply of goods.

Schedule I, II, III of Section 7 of GST Act

Schedule I

Activities to be treated as supply even if made without consideration

  1. Permanent transfer or disposal of business assets where input tax credit has been availed on such assets.
  2. Supply of goods or services or both between related persons or between distinct persons as specified in section 25, when made in the course or furtherance of business:

Provided that gifts not exceeding fifty thousand rupees in value in a financial year by an employer to an employee shall not be treated as supply of goods or services or both.

  1. Supply of goods:

(a) By a principal to his agent where the agent undertakes to supply such goods on behalf of the principal; or

(b) By an agent to his principal where the agent undertakes to receive such goods on behalf of the principal.

  1. Import of services by a taxable person from a related person or from any of his other establishments outside India, in the course or furtherance of business.

Schedule II

Activities or transactions to be treated as supply of goods or supply of services

  1. Transfer

(a) Any transfer of the title in goods is a supply of goods.

(b) Any transfer of right in goods or of undivided share in goods without the transfer of title thereof, is a supply of services.

(c) Any transfer of title in goods under an agreement which stipulates that property in goods shall pass at a future date upon payment of full consideration as agreed, is a supply of goods.

  1. Land and Building

(a) Any lease, tenancy, easement, licence to occupy land is a supply of services.

(b) Any lease or letting out of the building including a commercial, industrial or residential complex for business or commerce, either wholly or partly, is a supply of services.

  1. Treatment or process

Any treatment or process which is applied to another person’s goods is a supply of services.

  1. Transfer of business assets

(a) Where goods forming part of the assets of a business are transferred or disposed of by or under the directions of the person carrying on the business so as no longer to form part of those assets, whether or not for a consideration, such transfer or disposal is a supply of goods by the person.

(b) Where, by or under the direction of a person carrying on a business, goods held or used for the purposes of the business are put to any private use or are used, or made available to any person for use, for any purpose other than a purpose of the business, the usage or making available of such goods is a supply of services.

(c) Where any person ceases to be a taxable person, any goods forming part of the assets of any business carried on by him shall be deemed to be supplied by him in the course or furtherance of his business immediately before he ceases to be a taxable person, unless:

(i) The business is transferred as a going concern to another person; or

(ii) The business is carried on by a personal representative who is deemed to be a taxable person.

  1. Supply of services

The following shall be treated as supply of services, namely:

(a) Renting of immovable property.

(b) Construction of a complex, building, civil structure or a part thereof, including a complex or building intended for sale to a buyer, wholly or partly, except where the entire consideration has been received after issuance of completion certificate, where required, by the competent authority or after its first occupation, whichever is earlier.

  1. Composite supply

The following composite supplies shall be treated as a supply of services, namely:

(a) Works contract as defined in clause (119) of section 2.

(b) Supply, by way of or as part of any service or in any other manner whatsoever, of goods, being food or any other article for human consumption or any drink (other than alcoholic liquor for human consumption), where such supply or service is for cash, deferred payment or other valuable consideration.

  1. 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.

Schedule III

Activities or transactions which shall be treated neither as a supply of goods nor a supply of services

  1. Services by an employee to the employer in the course of or in relation to his employment.
  2. Services by any court or Tribunal established under any law for the time being in force.
  3. (a) The functions performed by the Members of Parliament, Members of State Legislature, Members of Panchayats, Members of Municipalities and Members of other local authorities;

(b) The duties performed by any person who holds any post in pursuance of the provisions of the Constitution in that capacity.

(c) The duties performed by any person as a Chairperson or a Member or a Director in a body established by the Central Government or a State Government or local authority and who is not deemed as an employee before the commencement of this clause.

  1. Services of funeral, burial, crematorium or mortuary including transportation of the deceased.
  2. Sale of land and, subject to clause (b) of paragraph 5 of Schedule II, sale of building.
  3. Actionable claims, other than lottery, betting and gambling.
  4. Supply of goods from a place in the non-taxable territory to another place in the non-taxable territory without such goods entering into India.
  5. (a) Supply of warehoused goods to any person before clearance for home consumption.

(b) Supply of goods by the consignee to any other person, by endorsement of documents of title to the goods, after the goods have been dispatched from the port of origin located outside India but before clearance for home consumption.

Special provision for Payment of Tax by a supplier of Online Information Database Access Retrieval

Section 14 of Integrated Goods and Services Tax Act 2017: Special provision for payment of tax by a supplier of online information and database access or retrieval services

(1) On supply of online information and database access or retrieval services by any person located in a non-taxable territory and received by a non-taxable online recipient, the supplier of services located in a non-taxable territory shall be the person liable for paying integrated tax on such supply of services:

Provided that in the case of supply of online information and database access or retrieval services by any person located in a non-taxable territory and received by a nontaxable online recipient, an intermediary located in the non-taxable territory, who arranges or facilitates the supply of such services, shall be deemed to be the recipient of such services from the supplier of services in non-taxable territory and supplying such services to the non-taxable online recipient except when such intermediary satisfies the following conditions, namely:

  1. The invoice or customer’s bill or receipt issued or made available by such intermediary taking part in the supply clearly identifies the service in question and its supplier in non-taxable territory;
  2. The intermediary involved in the supply does not authorize the charge to the customer or take part in its charge which is that the intermediary neither collects or processes payment in any manner nor is responsible for the payment between the non-taxable online recipient and the supplier of such services;
  3. The intermediary involved in the supply does not authorize delivery; and the general terms and conditions of the supply are not set by the intermediary involved in the supply but by the supplier of services.

(2) The supplier of online information and database access or retrieval services referred to in sub-section (1) shall, for payment of integrated tax, take a single registration under the Simplified Registration Scheme to be notified by the Government:

Provided that any person located in the taxable territory representing such supplier for any purpose in the taxable territory shall get registered and pay integrated tax on behalf of the supplier:

Provided further that if such supplier does not have a physical presence or does not have a representative for any purpose in the taxable territory, he may appoint a person in the taxable territory for the purpose of paying integrated tax and such person shall be liable for payment of such tax.

Taxes subsumed and not subsumed under GST

Taxes or levies to be subsumed should be primarily in the nature of indirect taxes, either on the supply of goods or on the supply of services.

  • Taxes or levies to be subsumed should be part of the transaction chain which commences with import/ manufacture/ production of goods or provision of services at one end and the consumption of goods and services at the other.
  • The subsumation should result in free flow of tax credit in intra and inter-State levels.
  • The taxes, levies and fees that are not specifically related to supply of goods & services should not be subsumed under GST.

Central Taxes to Be Subsumed In GST

On application of the above principles and various papers which have been released in this regard, it is deduced that the following Central Taxes should be, to begin with, subsumed under the Goods and Services Tax:

  • Central Excise Duty (CENVAT)
  • Additional Excise Duties
  • The Excise Duty levied under the Medicinal and Toiletries Preparations (Excise Duties) Act 1955
  • Service Tax
  • Additional Customs Duty, commonly known as Countervailing Duty (CVD)
  • Special Additional Duty of Customs – 4% (SAD)
  • Surcharges and Cesses levied by Centre are also likely to be subsumed wherever they are in the nature of taxes on goods or services. This may include cess on rubber, tea, coffee, national calamity contingent duty etc.
  • Central Sales Tax to be phased out.

State Taxes to Be Subsumed In GST

Following State taxes and levies would be, to begin with, subsumed under GST:

  • VAT / Sales tax
  • Entertainment tax (unless it is levied by the local bodies)
  • Luxury tax
  • Taxes on lottery, betting and gambling
  • State Cesses and Surcharges in so far as they relate to supply of goods and services
  • Octroi and Entry Tax
  • Purchase Tax

Taxes Which are Not to be Subsumed

GST may not subsume the following taxes within its ambit:

  • Basic Customs Duty: These are protective duties levied at the time of Import of goods into India.
  • Exports Duty: This duty is imposed at the time of export of certain goods which are not available in India in abundance.
  • Road & Passenger Tax: These are in the nature of fees and not in the nature of taxes on goods and services.
  • Toll Tax: These are in the nature of user fees and not in the nature of taxes on goods and services.
  • Property Tax
  • Stamp Duty
  • Electricity Duty

Treatment of Specific Goods

The Central Government tabled the 122nd Constitution Amendment Bill, 2014 (‘Bill’) on the introduction of Goods and Services Tax (‘GST’) before the lower house of Parliament on December 19, 2014. On analysis of the Bill, the Bill contains the following treatment for the following specific goods:

Tax On Supply of The Alcoholic Liquor for Human Consumption

As per the proposed amendment to Constitution by the Constitution (122nd Amendment) Bill, 2014, supply of the alcoholic liquor for human consumption has been excluded from the definition of goods and service tax. New clause 12A has been inserted in article 366 which defines goods and service tax as follows:

“Goods and Services tax” means any tax on supply of goods or services or both except taxes on the supply of the alcoholic liquor for human consumption

Hence, the supply of the alcoholic liquor for human consumption will be out of the GST. Alcohol products for human consumption would continue to be exclusively taxed by the States. Since the Bill specifically excludes alcohol products from the ambit of GST, bringing it within GST at a future date would require another constitutional amendment. CST on inter-state sales of alcohol would also continue. It therefore appears that the empowerment of States to tax alcohol products is intended to remain unaltered in the near future.

Tax On Tobacco Products

Tobacco and tobacco products would be subjected to GST. However, it can be subjected to a separate excise duty by the Centre.

Tax On Petroleum Crude/ High Speed Diesel/ Motor Spirit/ Natural Gas/ Aviation Turbine Fuel

The States would continue as per the current laws to impose Value Added Tax (VAT) on Petroleum Crude/ High Speed Diesel/ Motor Spirit/ Natural Gas/ Aviation Turbine Fuel on intra-state sales while inter-state sales would continue to attract Central Sales Tax (CST). These products would be transitioned into the GST regime from a future date to be notified by the GST Council. It is currently unclear from the schematics of the Bill whether States would fully discontinue collecting VAT/ CST on these products from this notified date, or whether the transition would be gradual. The Bill however also states that these products can be subjected to an excise duty imposed by the Centre; this levy would be imposed now and even after GST comes into force. Such duty can be in addition to the applicable VAT or GST imposed.

Tax On Newspapers and Advertisement Therein

GST would be capable of being levied on the sale of newspapers and advertisements therein. This would give the governments the access to substantial incremental revenues since this industry has historically been tax free in its entirety.

Taxation of Services: Centre and the States will have concurrent power to levy tax on goods and services. In the case of States, the principle for taxation of intra-State and inter-State has already been formulated by the Working Group of Principal Secretaries/Secretaries of Finance/Taxation and Commissioners of Trade Taxes with senior representatives of Department of Revenue, Government of India. For inter-State transactions an innovative model of Integrated GST will be adopted by appropriately aligning and integrating CGST and IGST.

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