Daily Dose of GST Update By CA Pradeep Jain

Definition of Common Working Days

Taking further to our discussion, we are continuing our discussion the definitions given under Section 2 of revised GST law and comparing the same with old model GST law to know the changes made in revised law:-

2(25) Common working days: The new definition reads as follows:

Common working days in respect of a State shall mean such days in succession which are not declared as a gazetted holiday by the Central Government or the concerned State Government;

This is a new definition added in the Revised GST Act. There is no reference of common working days at any place other than this definition in the Act. However, as per opinion of the author the “working days” wherever used in Act should be taken as common working days. In the In the absence of the definition, there could have been a scope of litigation because now both the central and state governments are going to be the governing body. But the new definition is not completely successful in bringing clarity. There can be instances where there is a central holiday but not a state holiday or vice versa. In such cases, how to calculate the working days? Hence, this definition is added but it is for states only and not for the centre.

A more positive interpretation should have been done that even if any one of the both Central or State Government has a holiday, it would be treated as a holiday for the purpose of both central and state government. But we all know how a assessee friendly interpretation is so tough call to make. May be a more defining statute in this case will be needed to avoid a possible litigation.

Concept of Continuous supply 2(30) Continuous supply of goods: The definition reads as follows:

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, and for which the supplier invoices the recipient on a regular or periodic basis;

2(31) Continuous supply of services: the definition reads as follows:

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 supply of such service as the Central or a State Government may, whether or not subject to any condition, by notification, specify;

There is no concept of continuous supply of goods under present Central excise or VAT/CST laws. Under service tax, continuous supply of service is defined to mean any service which is provided or agreed to be provided continuously or on recurrent basis, under a contract, for a period exceeding three months with the obligation for payment periodically or from time to time. Govt notified telecom services, works contract service are examples of continuous supply of service. In case of continuous supply of service, where the provision of whole or part of the service is determined periodically on completion of event as per contract entered, which requires receiver of service to make payment to service provider, the completion of such event is a point of taxation.

Time of supply for continuous supply of goods:

(i) Where successive statements of accounts or successive payments are involved the time of supply shall be the date of expiry of the period to which such successive statements of accounts or successive payments relate.

(ii) If there are no successive statements of account then the time of supply shall be date of issue of the invoice (or any other document) or the date of receipt of payment, whichever is earlier.
Time of supply in case of services –

(i) Where the due date of payment is ascertainable from the contract: The date on which the payment is liable to be made by the service receiver, whether or not any invoice has been issued or any payment has been received by the supplier of service;

(ii) Where the due date of payment is not ascertainable from the contract: When the supplier of service receives the payment, or issues an invoice, whichever is earlier;

(iii) Where the payment is linked to the completion of an event: The time of completion of that event;

The event of supply is central to levy of GST. When supply of goods or services is not done, mere raising of invoice/payment received is being treated as time of supply. It is not made clear what happens in such a scenario whereby payment is received/invoice raised but supply does not take place.

The multiple events, namely raising invoice/making payment in case of supply of goods/services or say completion of event-in case of supply of service triggering the tax levy, confirms that the Govt wants to ensure tax is collected at the earliest point of time. This would create difficulties for long term contracts for supply of goods and/or services, especially under contracts with PSU’s/Govt departments, where the assessee is forced to pay taxes based on mere raising invoice, even when the payments get delayed by customer. When taxes are not paid on such long term contracts by the vendor due to non-receipt of payment from customer, credit availed on such vendor invoice gets denied to the customer in turn, leading to hardships for the customer. Customer may discontinue giving business to such vendors.

Thus this concept should be simplified keeping in mind the fact that all sectors do not work in the similar fashion. Every sector has its own individual style of working and making common laws for all could subject them to impossible working scenarios.

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January 2021