GST Puzzle in Health Care Sector finally solved!

Introduction:

The 25^th GST council held on 18^th January 2018 has finally resolved one of the jigsaw puzzles that have been mystifying the health care sector since 1^st July 2017. GST had brought a paradigm shift in the indirect tax however some of the concepts like “bundled services” under the erstwhile service tax regime had been brought forward under a more broad term as “composite supply”. This term composite supply in GST also included the supply of goods unlike the pre GST regime. Health Care services provided by hospitals were exempt supplies however other supplies (if provided separately) like sale of medicaments; food, rental etc were subject to GST.

What was that concerning the health sector?

The provision of “health care” services was exempt under entry 74 of the Notification 12/2017–Central Tax (Rate). The entry has been reiterated below:

“Services by way of –

(a) health care services by a clinical establishment, an authorized medical practitioner or paramedics;

“health care services” means any service by way of diagnosis or treatment or care for illness, injury, deformity, abnormality or pregnancy in any recognized system of medicines in India and includes services by way of transportation of the patient to and from a clinical establishment, but does not include hair transplant or cosmetic or plastic surgery, except when undertaken to restore or to reconstruct anatomy or functions of body affected due to congenital defects, developmental abnormalities, injury or trauma;”  

In case of regular and small treatments involving majorly consulting or diagnostic services there wasn’t any issue as these were clearly falling under “health care services”. The question was regarding tax ability of services like surgical services provided by Hospitals which generally includes the surgery conducted on the patient, charges for room rent, consultancy charges, food & beverages, bed charges, operation theater rent, equipment charges, Doctor fees, pharmacy consumed. This type of supplies involved provision of both goods and services and one may have to look into the provisions of Section 8 of the CGST Act.

Section 8 of the CGST Act provides the tax-ability of composite and mixed supply as under:

As per Section 2(30) a “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.

Now, if the surgical services were to fall under composite supply, then as the principal supply is health care, the other supplementary supplies of food & beverages, bed charges, operation theater rent, equipment charges, Doctor fees, pharmacy consumed etc would also be exempt as the principal supply is exempt.

However the confusion of taking surgical services as mixed supply arose due to the use of the following words in the definition of composite supply:  “consisting of two or more taxable supplies of goods or services or both, or any combination thereof” and hence some of the tax experts were of the view that for any combination of goods or services or both to fall under the definition of composite supply, all the services in the combination should be taxable. In the case of surgical services, the service of surgery was exempt and hence the entire bundle of supply shall be mixed supply and the tax shall be levied on the whole at the highest rate.

What is clarification received?

The GST Council has considered the above question and has clarified in the press release dated 18.01.2018 that all the supplies of goods or services to the patients shall be regarded as heath care services, hence giving a major relief. The text of the press release is reproduced below:

“To clarify that,-

1) Services provided by senior doctors/consultants/technicians hired by the hospitals, whether employees or not, are healthcare services which is exempt.

2) Hospitals also provide healthcare services. The entire amount charged by them from the patients including the retention money and the fee/payments made to the doctors etc., is towards the healthcare services provided by the hospitals to the patients and is exempt.

3) Food supplied to the in-patients as advised by the doctor/nutritionists is a part of composite supply of healthcare and not separately taxable. Other supplies of food by a hospital to patients (not admitted) or their attendants or visitors are taxable.”