AGGREGATE TURNOVER Section 2(6)
“aggregate turnover” means the aggregate value of all
i. taxable and non-taxable supplies,
ii. exempt supplies and
iii. exports of goods and/or services of a person
Having the same PAN, to be computed on all India basis and
Excludes taxes, if any, charged under the CGST Act, SGST Act and the IGST Act, as the case may be;
Explanation.- Aggregate turnover does not include the value of supplies on which tax is levied on reverse charge basis and the value of inward supplies.
Above term has been used in following key places and has got wide ramifications in GST law: Taxable person – Section 9; Composition levy – Section 8; Levy of late fee – Section 33 and Liability to be registered – Schedule III.
a. Taxable person and Liability to be registered
As per proviso to section 9(1) of Model GST Law, If the aggregate turnover of a person does not exceed Rs. 10 lakhs (Rs. 5 lakhs in case of North eastern states) in a financial year, he is not considered as a taxable person.
Since the term used in the proviso is “Aggregate turnover”, while computing the limit of Rs. 10/5 lakhs all his supplies such as taxable, non-taxable, exempt and export supplies shall be reckoned. It is stated in the definition that limit is to be computed on all India basis hence, it is clear that State wise basic exemption is not applicable.
For example, Mr X commences his project consultancy business on 30th of March, and bills Rs. 5000/- but he has billed Rs. 50 lakhs from the petrol pump he owns. Now as per above proviso, he needs to charge GST on the billing of Rs. 5000/- also.
When we compare the existing provision in service tax law, as per notification no 33/2012 “Aggregate value of taxable services” is alone taken for the purpose of computing small service exemption. Meaning thereby, service which is not a taxable service or wholly exempt from service tax are not included.
Probably, the logic to include all supplies in GST law may be that when a person is able to achieve total turnover of more than threshold then he is not a small supplier and he must be brought within the tax net. In the above example also, aggregate turnover of Mr. X comes to Rs. 55 lakhs hence small exemption is not required to be given.
Same way, as per schedule III of the model law, every supplier whose aggregate turnover in a financial year exceeds Rupees nine lakhs (four lakhs in case the supplier does his business in North eastern states including Sikkim) shall be liable to be registered in the state from where he makes taxable supply of goods and / or services.
Note: GST council in its meeting held on 23/09/2016 has approved Exemption limit at Rs. 20 lakhs. Exemption Threshold Limit for GST in North-East States fixed at Rs.10 Lakhs.
b. Composition Levy
Section 8(1) of model GST law deals with composition provisions wherein it is stated that in case a registered taxable person’s aggregate turnover in a financial year does not exceed Rs. 50 lakhs then he has an option to discharge lower rate of tax instead of the normal tax payable as per other provisions of the model GST law.
Hence, it is understood that while calculating aggregate turnover entire supplies need to be aggregated. Following examples would clarify this point
a. A has turnover in Chennai Rs. 35 lakhs, Bangalore Rs. 14 lakhs and Rs. 2 lakhs in Pune. He is not eligible for composition scheme since aggregate turnover is calculated on all India basis which is Rs. 51 lakhs.
b. A has taxable supply of Rs. 1 lakh and non-taxable supply of Rs. 50 lakhs in a financial year, he is not eligible to opt for composition scheme.
c. Levy of Late fee
Section 3 3(2) of model law states that if a registered taxable person fails to furnish the return required under section 30 (filing of annual return) by the due date, he shall be liable to a late fee of Rupees 100 for every day during which such failure continues subject to a maximum of an amount calculated at a quarter percent (0.25%) of his aggregate turnover.
Hence, it is clear that if a person has got exempted supply billing the same shall also be considered for calculating late fee.
2. BUSINESS – Section 2(17)
Business includes –
(a) Any trade, commerce, manufacture, profession, vocation or any other similar activity, whether or not it is for a pecuniary benefit;
(b) Any transaction in connection with or incidental or ancillary to (a) above;
(c) Any transaction in the nature of (a) above, whether or not there is volume, frequency, continuity or regularity of such transaction;
(d) Supply or acquisition of goods including capital assets and services in connection with commencement or closure of business;
(e) 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, as the case may be;
(f) Admission, for a consideration, of persons to any premises; and
(g) Services supplied by a person as the holder of an office which has been accepted by him in the course or furtherance of his trade, profession or vocation;
The taxable person must carry on business (section 9). The definition is wide to cover all sorts of activities in connection with business. Following points emerge as a result of the definition of business.
√ First two points in the definition have been adopted from CST Act. Definition of business in CST (section 2 (aa)] reads as follows
♦ any trade, commerce or manufacture, or any adventure or concern in the nature of trade, Commerce or manufacture, whether or not such trade, commerce, manufacture, adventure or concern is carried on with a motive to make gain or profit and whether or not any gain or profit accrues from such trade, commerce, manufacture, adventure or concern; and
♦ Any transaction in connection with, or incidental or ancillary to, such trade, commerce, manufacture, adventure or concern.
√ Only point of difference is casual activities are covered in the first part of definition where as in GST the same is given as separate point (c).
√ Even if there is no profit motive or even if no profit is earned an activity in the nature of trade, manufacture, commerce, profession may constitute business. Also, using the terms “any other siLilDr DctiLityF gives room for litigations.
√ Incidental activity is not business if main activity is not business
♦ By virtue of point (b) of definition, incidental activity is taxable only if main activity is business. That is to say, incidental activity constitutes business only if main activity is business. For example, Sale of Laddu by Tirupathi Devasthanam cannot be business since main activity of temples is not business. [Tirumalai Tirupati Devasthanam Vs State of Madras (19 72)29 STC 226 Madras; Arulmigu Deandayuthapani Tirukoil Vs Commercial Tax officer (1998) 108 STC 114 Madras, followed in (2001) 124 STC 553 Madras].
♦ When a religious or other organization sells books etc. to spread its message [Commissioner of Sales Tax Vs Sai Publication Fund, (2002) 126 STC 288 SC] it does not constitute business unless it is proved by the Revenue that there is an intention to conduct business in the latter activity [state of Tamil Nadu Vs Board of Trustees (1999) 114 STC 520 SC].
♦ If the main activity of a dealer is business, a subsidiary business or commercial activity, whether or not forming an integral part of the main business, will constitute a business by itself, such as when a dealer sells unwanted or surplus goods, even if such disposals were made before the commencement of the regular business and even if no profit accrued on such transaction. [State of Tamil Nadu Vs Shakti Estates (1989) 73 STC 209 SC, State of Orissa Vs Orissa Road Transport Corporation (1977) 107 STC 204 SC]
√ Even transactions which are undertaken on casual or irregular basis are also covered within the term business by virtue of point (c) of the definition.
√ It appears from point (d) of the definition, when partners bring in capital assets or stocks in to the firm as their capital or assets distributed to partners at the time of dissolution of firm shall also amount to business. In the present tax regime, though State Sales tax law does not contain direct provision to tax the assets distributed to partners while dissolution, as per court decisions, they are not taxable. Hon’ble Bombay High court ruled in the case of “Synthetic Suppliers Versus Commissioner of Sales Tax, Mumbai 2010 (5) TMI 76” partnership, all partners are entitled for their respective shares in the property of partnership as owners. Therefore, there is no question of sale between the partners but the same is distribution of their own property. In the abovementioned facts and circumstances of the case, it is not possible to hold that the transfer of motor car by the firm to its partner constitutes a W1lC unLIC% WCctionLI (28F oL1 t7C BST Act, 19LIR1LI t7C%CL1 %C, lL1$lC toIt1x.” To put end to these types of litigations, this clause may probably be included in the term business. Hence, for the purpose of calculating threshold exemption, limit for registration receipts from above transfer will also be included.
√ Point (e) covers supply of goods or services by a club or similar entity to its members. Concept of mutuality has always been a point for litigation in the present indirect taxes. In service tax, in the case of Sports Club of Gujarat Ltd Vs Union of India & 3 2013 (7) TMI 510, Hon’ble Gujarat High Court, referred decision of Jharkhand High Court “it can be held that in view of the mutuality and in view of the activities of the club, if club provides any service to its members may be in any form including as mandap keeper, then it is not a service by one to another in the light of the decisions referred above as foundational facts of existence of two legal entities in such transaction is missing.” This is followed in many decisions in service tax law.
However, with effect from 01st July, 2012, definition of person in service tax has been amended to include a deeming fiction [Explanation 3 of section 65B(44)] that club and its members are treated as distinct persons meaning thereby provision of service by the club to its members are treated as activity between two persons. Same deeming fiction is given in the definition of business in GST.
√ Clause (f) of the definition deals with admission, for a consideration, of persons to any premises. It is a general practice that a lease right holder transferring lease rights to another with a premium and such premium is consideration for admitting the incoming person for the premises. For example, If X wants to hire a premises but the same is already hired to Y. Now Y agrees to vacate on payment of some money to him which is popularly called “Pagadi”. These type of transactions may fall under this clause. This may also include admission to any event or facilities like amusement park or gaming event for a fee or other consideration.
√ Clause (g) deals about services supplied by a holder of an office.
3. Capital Assets – Section 2(19)
Capital Assets shall have the meaning as assigned to it in the Income Tax Act 1961 (43 of 1961) but the said expression shall not include jewellery held for personal use or property not connected with business.
Capital Assets – definition – section 2(14) of Income Tax Act 1961
Capital assets means
i. Property of any kind held by the assessee, whether or not connected with his business or profession;
ii. Any securities held by Foreign Institutional Investor which has invested in such securities in accordance with the regulations made under the Securities and Exchange Board of India Act, 1992, [15 of 1992], but does not include-
a. Any stock in trade [other than the securities referred to in sub-clause (b)] consumable stores or raw materials held for the purposes of his business or profession;
b. Personal effects, that is to say, movable property (including wearing apparel and furniture) held for personal use by the assessee or any member of his family dependent on him, but excludes-
ii. Archaeological collections;
v. Sculptures; or
vi. Any work of art;
For the purpose of this clause –
a. The expression “Foreign Institutional Investor” shall have the meaning assigned to it in clause (a) of section 1 15AD;
b. The expression “Securities” shall have the meaning assigned to it in clause (h) of section 2 of the Securities Contracts (Regulation) Act, 1956; [42 of 1956]
iii. Agricultural land in India, not being land situated
a. In any area which is comprised within jurisdiction of a municipality (whether known as municipality, municipal corporation, notified area committee, town area committee, town committee, or by any other name) or a cantonment board and which has a population of not less than ten thousand or
b. In any area within the distance, measured aerially-
i. Not being more than two kilometers, from the local limits of any municipality or cantonment board referred to in item (a) and which has a population of more than ten thousand but not exceeding one lakh; or
ii. Not being more than six kilometers, from the local limits of any municipality or cantonment board referred to in item (a) and which has a population of more than one lakh but not exceeding ten lakh; or
iii. Not being more than eight kilometers, from the local limits of any municipality or cantonment board referred to in item (a) and which has a population of more than ten lakh
Explanation: For the purposes of this sub-clause, “Population” means the population according to the last preceding census of which the relevant figures have been published before the first day of the previous year.
iv. Special Bearer Bonds, 1977 or 7 percent gold bonds. 1980 or National Defence Gold Bonds, 1980, issued by the Central government;
v. Special Bearer Bonds, 1991 issued by the Central Government;
vi. Gold Deposit Bonds issued under the Gold Deposit Scheme, 1999 or Deposit Certificates issued under the Gold Monetization scheme, 2015 notified by the Central Government;
Explanation: For the removal of doubts, it is hereby clarified that “Property” includes and shall be deemed to have always included any rights in or in relation to an Indian Company, including rights of management or control or any other rights whatsoever;
√ Examples of capital assets as per above definition are as follows
√ Clause 2(19) of model law says “but the said expression shall not include jewellery held for personal use or property not connected with business.”This means though jewellery held for personal use and property held not for business are capital assets for the purpose of Income Tax Act the same are not regarded as Capital assets for the purpose of GST.
√ Hence, it is understood that supply of goods in the following circumstances is not regarded as taxable supply
♦ Personal assets (including jewellery) are supplied not in the course of business
♦ Agricultural form land not falling in the limits specified in the definition, when supplied, whether or not sold in the course of business.
√ The definition of capital asset does not confine its meaning to movable property alone and it may include immovable property also. Immovable properties are not goods but they are not excluded from the definition of services. Hence, a doubt may arise when immovable properties supplied in the course of business are subject to GST and one may have to wait for the answer till final law is passed.
√ Only one place where the term capital asset is used is in the definition of Business. No other place has a reference to this term in the entire GST model law.
√ As per GST model law personal assets when supplied not in the course of business are not taxed except in one situation which has got reference in the definition of business. “(d) Supply or acquisition of goods including capital assets and services in connection with commencement or closure of business;”
√ Hence, when a partner brings in any capital assets may be motor car, office equipment, machinery etc., towards his capital contribution then the same may be subject to GST since this transaction is regarded as business. Same way, when the assets are distributed by the firm to its partners during the course of dissolution of partnership firm, the same may be considered as business and a taxable supply.
√ However, in so many places the term business assets have been used which may include capital assets also. Following are the places where “business assets” have been used.
√ Transactions without consideration – section 3(1)(c)
√ Point 4 of Schedule II of model GST law, which deals about Matters to be treated as supply of goods or services
At the time of de-registration or surrender of registration certificate, if any business assets like machinery, motor car, office equipment etc., are kept then retention of such assets are considered as taxable supply. However RC is surrendered while business itself is sold as a going concern or business is going to be taken over by legal heirs or personal representatives they are not considered as taxable supply.
Goods means every kind of movable property other than
> Actionable claim
but includes →
√ Growing Crops
√ Grass and things attached to or forming part of land and which are agreed to be severed before the supply or under the contract of supply
For the purpose of this clause, the term moveable property shall not include any intangible property.
Goods[Article 366(12) of the Constitution/
Goods includes all materials, commodities and articles.
Definition of Goods in earlier Laws :
Goods[Sec 2(d) of CST Act, 1956/
“Goods” includes all materials, articles, commodities and all other kinds of movable property, but does not include newspapers, actionable claims, stocks, shares and securities;
Goods[Sec 65B(25) of Finance Act, 1994/
Goods means every kind of movable property other than actionable claim and money; and includes securities, growing crops, grass, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale;
Goods[Explanation to Sec 2(d) of the Central Excise Act 1944/
Goods include any article, material or substance which is capable of being bought and sold for a consideration and such goods shall be deemed to be marketable.
Comparison of definition of Goods in Model GST Law with that of earlier laws:
Central Sales Tax Law:
In CST Act, the definition of Goods unambiguously excludes newspapers, but the definition in the model GST law articulates all moveable property as goods and moreover the Article 366(12) of the Constitution also defines Goods includes all materials, commodities and articles. Thus, the taxability of Newspapers is not being excluded in Model GST Law from taxation purview. ( Maybe challenged under right to freedom of speech)
Service Tax Law:
The same definition as in Service Tax law was replaced in the Model GST Law with one additional explanation to specifically exclude Intangible property from the definition of Goods.
Central Excise Law:
In central excise the Goods are not defined directly, but in an Explanation to the definition of Excisable Goods the interpretation of the Goods being given. Moreover, the following 2 conditions have been mentioned in Central Excise Law for treating an article to be goods which is not being emphasized in Model GST Law: Goods must be bought and sold for a consideration and Goods must be deemed to be marketable.
In the Model GST Law the supply of Goods or Services for both consideration as well as no consideration
Analysis of Goods in Model GST Law:
As per Model GST Law the definition of Goods is an inclusive definition as it includes all kinds of moveable property, securities, growing crops and grass and things attached to or forming part of the land which are agreed to be severed before supply or under the contract of supply. However the definition precisely excludes money and actionable claim.
The word “moveable property” is not defined in the GST Law, but as per Black Law’s dictionary the word movable is that which can be changed in place, as movable property; or in time, as movable feasts or terms of court. Similarly the word property means the ownership of a thing is the right of one or more persons to possess and use it to the exclusion of others.
As per Section 2(36) of the General Clauses Act, 1897, movable property is defined as property of every description except immovable property.
Thus, conjointly reading the above meaning with reference to the definition available in the Article 366(12) of the constitution all articles, commodities and materials which is moveable is treated as Goods for the purpose of GST.
The word “Securities” is not defined in the GST Law, but as per Sec 2(h) of the Securities Contracts Regulation Act, 1956, Securities include –
(i) shares, scrips, stocks, bonds, debentures, debenture stock or other marketable securities of a like nature in or of any incorporated company or other body corporate;
(iii) units or any other instrument issued by any collective investment scheme to the investors in such schemes;
(iv) security receipt as defined in clause (zg) of section 2 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002;]
(v) units or any other such instrument issued to the investors under any mutual fund scheme; —For the removal of doubts, it is hereby declared that “securities” shall not include any unit linked insurance policy or scrips or any such instrument or unit, by whatever name called, which provides a combined benefit risk on the life of the persons and investment by such persons and issued by an insurer referred to in clause (9) of section 2 of the Insurance Act, 1938 (4 of 1938);]
(vi) any certificate or instrument (by whatever name called), issued to an investor by any issuer being a special purpose distinct entity which possesses any debt or receivable, including mortgage debt, assigned to such entity, and acknowledging beneficial interest of such investor in such debt or receivable, including mortgage debt, as the case may be;]
(vii) Government securities;
(viii) such other instruments as may be declared by the Central Government to be securities; and
(ix) rights or interest in securities;
Presently, Securities Transaction Tax is payable on the following securities as per Securities Contracts (Regulation) Act, 1956:
Since Securities Transaction Tax is being paid on the above securities which is not subsumed in GST and in Model GST Law Goods include Securities and supply of the same shall be liable to GST. Thus, it leads to double taxation, however it is expected that an exemption may be brought by the Central or State Government on recommendation of the GST Council, by exercising the power conferred in Sec 10 of CGST/SGST Act.
GROWING CROPS, GRASS AND THING …….:
All the growing crops, grass and things attached to or forming part of the land agreed to be severed before supply or under the contract of supply. On plain reading of this part of the definition it is understood that the scope of covering the Agricultural produce are also covered by this part of the definition. But, however, separate definition is available for Agriculture and Agriculturist under Sec 2(7) and Sec 2(8) of CGST/SGST Act. Moreover, the Agriculturist is not considered as a taxable person as per the Proviso to Sec 9 of the CGST / SGST Act. Though, it seems to be clear that the Agricultural produce will not be made liable to GST as per the above points, it is better to exclude from the definition of Goods through an explanation.
Actionable Claim is precisely excluded from the definition and it is not goods, but however it is Service as per the definition of Services under Sec 2(88) of the CGST/SGST Act. The term Actionable Claim is not defined in CGST / SGST Act, but as per Sec 3 of the Transfer of Property Act, 1882 –
Actionable Claim means a claim to any debt, other than a debt secured by mortgage of immovable property or by hypothecation or pledge of moveable property, or to any beneficial interest in moveable property not in possession either actual or constructive, of the claimant, which the civil courts recognize as affording grounds of relief whether such debt or beneficial interest be existent, accruing or conditional or contingent.
Illustrations for Actionable Claim:
The term Money is defined in Model GST Law, however we can import the definition of money as available in Service Tax Law as per which Money means legal tender, cheque, promissory note, bill of exchange, letter of credit, draft, pay order, traveller cheque, money order, postal or electronic remittance or any similar instrument but shall not include any currency that is held for its numismatic value.
Thus all transaction in money is neither goods nor services as in the definition of service also money is precisely excluded. Hence, supplying of the money is not liable to GST.
EXCLUSION BY EXPLANATION:
Intangible Property as per Sec 2(59) of the CGST/SGST Act means any property other than tangible property. Tangible property as per Sec 2(93) of the CGST/SGST Act means any property that can be touched or felt. So all the property which cannot be touched or felt may be construed as Intangible property.
Illustrations for Intangible Property:
Patents, Copyrights, Designs, Computer Software programmes, Licenses, Intellectual property, etc.
AMBIGUITY OF GOODS Vs. SERVICES WHETHER SETTLED NOW:
Lot of legal wrangles were pending before the Judicial forum for some 2 to 3 decades whether certain transaction to be treated as goods or services, now the Model GST Law attempts to settle the same by mentioning the certain matters to be treated as Supply of Goods as well as Supply of Services in Schedule II to the CGST / SGST Act.
The following are the matters which are treated as supply of Goods:
> Any transfer of the title in goods
> Any transfer of title in goods under an agreement which stipulates that property in goods will pass at a future date upon payment of full consideration as agreed.
> Supply of goods by any unincorporated association or body of persons to a member thereof for cash, deferred payment or other valuable consideration.
> Transfer or disposal of Business Assets whether or not for a consideration.
> Sale of business assets of a taxable person by any other person to recover debt shall be deemed to be Supply of Goods.
> Goods forming part of the assets of any business carried on by a taxable person, who ceases to be so, shall be deemed to be supplied by him in course of furtherance of his business immediately before he ceases to be a taxable person, unless the business is transferred as a going concern to another person or the business is carried on by a personal representative who is deemed to be a taxable person.
> Supply of Goods by any unincorporated association or body of persons to a member thereof for cash, deferred payment or other valuable consideration.
We thank Study Group on Indirect Taxes – Tamil Nadu for drafting this article and Study Group on Indirect Taxes Kanpur for vetting the same. For any queries you may connect with authors at [email protected] or [email protected]
– Indirect Taxes Committee
The views expressed in this article are of the author(s). The Institute of Chartered Accountants of India may not necessarily subscribe to the views expressed by the author(s).
The information cited in this article has been drawn from various sources. While every effort has been made to keep the information cited in this article error free, the Institute or any office of the same does not take the responsibility for any typographical or clerical error which may have crept in while compiling the information provided in this article.