Under GST, tax is levied on the taxable supply of goods/services. Tax is applicable on the taxable services supplied in India.
In the GST regime, intermediary services by Indian suppliers to foreign principals are taxed to GST. In common parlance, any person who enables the supply of goods/services between two persons, is considered as intermediary.
There has been a lot of confusion regarding tax implications on the pre-sales and post-sales services vs intermediary services done by Indian suppliers to foreign customers.
The paper writer has examined different models by which Indian suppliers are providing services to foreign principals and GST implications. Further examined the tax implications in light of the advance rulings such as in V serv Global Pvt Ltd [2018-TIOL-263-AAR-GST] and in NES Global Specialist Engineering Services Pvt Ltd [2019-TIOL-64-AAR-GST].
Who is an intermediary?
In the terms of section 2(13) of IGST Act, “intermediary” means a broker, an agent or any other person, by whatever name called, who arranges or facilitates the supply of goods or services or both, or securities, between two or more persons, but does not include a person who supplies such goods or services or both or securities on his own account;
In short, “intermediary” essentially involves 3 or more persons
(1) Supplier of service/goods,
(2) Principal on whose behalf service is rendered/goods supplied and
(3) Persons who actually receives the service/goods (i.e., customers of the principal).
However, where a person is providing services or supplies goods on his own account to his customers, it cannot be termed as an intermediary in accordance with section 2(13) of IGST Act.
Hence it is clear from the above definition, that there is required to be an arrangement or facilitation of the supply of goods, services or securities. In addition to the definition, in order to qualify as an intermediary; there should be two supplies at any one time:
> The supply between the principal and the third party; and
> The supply of his own service (agency service) to his principal, for which a fee or commission is usually charged.
However, it may be noted that a person acting as an intermediary cannot change the nature of supply provided by person on whose behalf he is acting as an intermediary.
Next, we examine concept of composite supply under GST.
Concept of composite and Mixed supply under GST.
Composite supply: In GST, a supply is said to be a composite supply where the following conditions are satisfied:
a. consisting of two or more taxable supplies of goods or services or both, or any combination thereof,
b. which are naturally bundled,
c. supplied in conjunction with each other in the ordinary course of business
d. one of which is a principal supply
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 it does not constitute a composite supply.
The tax liability on a composite or a mixed supply would be determined in the following manner, namely:
a. composite supply comprising two or more supplies, one of which is a principal/predominant supply, would be treated based on the supply of such principal supply; and
b. mixed supply comprising two or more supplies would be treated as a supply of that particular supply which attracts the highest rate of tax.
Place of supply of intermediary service vs. Support service
The place of supply of service, whether within or outside India is determined by applying Section 13 of IGST Act, 2017 where the location of supplier or location of recipient is outside India.
Section 13(1) would apply to determine the place of supply of services where the location of the supplier of services or the location of the recipient of services is outside India.
Default Section 13(2) states that the place of supply of service except the services specified in sub-sections (3) to (13) shall be the location of recipient of service.
In terms of Section 13(8)(b) of IGST Act, 2017, the place of supply for the intermediary services would be the location of the supplier of such services (i.e. location of intermediary service provider)
When the essential character of services provided by service provider to foreign principal/foreign customer is that of commission agent for enabling sourcing or sale of goods such as machine/garments to outside India along with support services. As per the composite supply concept, the principal supply is that of intermediary service.
Therefore, such service to be treated as intermediary services, being services of commission agent for goods covered in section 13(8)(b), and the place of supply of service is location of supplier in India and liable to GST
However, the supplier could be doing presale activities of nature of recommending suitable suppliers, maintain supplier list, and post order activities such as supplier order status, guidance to manufacturers on trends/developments, communicate deviation in quality and delivery schedule, advise on international norms and standards.
The dominant nature of service appears to be that of outsourced business support services, which in normal course could be done by foreign client but outsourced to Indian supplier. Consequently, this is a composite supply of service in which the essential nature of services is that of outsourced support services, such services could get covered in section 13(2), whereby place of supply of service is location of foreign client of Indian supplier.
Further if all the conditions set out in section 2(6) of IGST Act as extracted further paras are fulfilled by supplier. Then such services would be treated as exported services and eligible credit pertaining to such exports can be availed. Alternately go for refund.
Single agreement for providing both services namely support service plus intermediary service:
When the supply of intermediary and other support services including inspection, testing, design, consultancy, etc are done under single agreement., the view maybe taken that it is a composite supply by supplier, wherein facilitation/ intermediary services is the principal supply therefore, not an export and GST payable. This could be view favoured by dept as well.
Separate agreements for providing support service and intermediary service:
There could be a separate agreement for provision of intermediary service. The services of enabling purchase/sale of goods/services done to the foreign clients could be said to be facilitating the supply of goods/services to foreign clients and considered as intermediary to that extent. Such services are covered in section 13(8)(b) of IGST Act. The place of provision of service is location of supplier of service in India and taxable to GST.
The support service agreement could get covered in section 13(2) of IGST Act and place of supply of service is location of foreign client outside India. Further if all conditions of export of services are satisfied such services could be treated as exports.
Export of services under GST
In accordance with section 2(6) of the IGST Act, 2017” Export of Services” means the supply of any Service when
(i) The supplier of Service is located in India;
(ii) The recipient of Service is located outside India
(iii) The place of supply of service is outside India
(iv) *The payment for such service has been received by the supplier of service in convertible foreign exchangeand
(v) The supplier of service and the recipient of service are not merely establishments of a distinct person but distinct legal entities in accordance with Explanation 1 in section 8;
In order to treat an export of services all the conditions mentioned above has to be satisfied. When export of services done under LUT, GST need not be paid and the corresponding eligible credit maybe availed/alternately go for refund.
*The condition has been amended with effect from 1st February 2019 as the payment for such service has been received by the supplier of service in convertible foreign exchange or in Indian rupees wherever permitted by Reserve bank of India.
When above conditions are satisfied and export done under LUT then there is no need to pay GST on such exported services.
Note: Explanation 1 to Section 8 of the IGST Act, 2017 provides that where a person has an establishment in India and any other establishment outside India then such establishments would be treated as establishments of distinct persons.
Exemptions – notification 09/2017 IT(R)
Entry 10F: Provides exemption for Services supplied by an establishment of a person in India to any establishment of that person outside India, which are treated as establishments of distinct persons in accordance with Explanation 1 in section 8 of the IGST Act.
The place of supply of the service should be outside India as per S. 13 of IGST Act
> The said exemption is effective from 27th July 2018 vide notification no. 15/2018 – IT(R)
> The exemption provides only for the services between establishments i.e. to say the branches of same co.
> The supplier branch of co. supplying services would be exempted when place of supply is outside India, the exemption provided a relief for the branches when supplying services as it would not be considered as an export of services [condition no 5 in such cases would be dissatisfied] and the supplier branch in India would be liable to pay tax under forward charge.
> The supplier branch in India would be required to reverse its ITC of such common goods and services proportionate to the exempted services.
Illustration: Let’s say company ‘ABC’ has 2 establishments [‘A’ and ‘B’] ‘A’ located in India is supplying support management services [for which place of supply is outside India as per S. 13(2)] to ‘B’ located outside India, as it is an establishments of distinct persons the conditions of export of services are not satisfied and it would be exempted as per above entry in the hands of ‘A’
Entry 12AA: Provides exemption for the Services provided by an intermediary when location of both supplier and recipient of goods is outside the taxable territory provided – 20/2019- IT (R) dt. 30.09.2019
Following documents shall be maintained for a minimum duration of 5 years:
a. Copy of Bill of Lading
b. Copy of executed contract between Supplier/Seller and Receiver/Buyer of goods
c. Copy of commission debit note raised by an intermediary service provider in taxable territory from service recipient located in non- taxable territory
d. Copy of certificate of origin issued by service recipient located in non- taxable territory
e. Declaration letter from an intermediary service provider in taxable territory on company letter head confirming that commission debit note raised relates to contract when both supplier and receiver of goods are outside the taxable territory
> The said exemption is effective from 01st October 2019 and it is a conditional exemption under GST.
> The exemption is applicable only for intermediary services when facilitating/arranging goods and not services.
> This is a welcome move from the government also it is to be noted government exempted such intermediary services where both location of supplier and recipient of goods is outside India then in such a case intermediary service provider is not required to pay GST on the same.
> Wherever any goods and/ or services are used for making taxable supplies as well as exempted supplies under GST [common goods or services] it would be required to reverse its ITC of such common goods and services proportionate to the exempted turnover.
> The intermediary service provider is required to maintain the said above documents for period of 5 years.
It could be understood from the above exemption entry that intermediary services would be exempt when all the following conditions are satisfied:
> The supplier of goods is located outside India,
> The recipient of goods is located outside India,
> Certificate of Origin of the non-taxable territory [outside India]
Let’s say ‘A’ is located in USA and he is supplying goods to ‘B’ located in UK through a person ‘C’ of India and the certificate of origin of such goods in India.
Then in such a case the above exemption would not be applicable as and it would be taxable under the hands of ‘C’ as intermediary services.
Based on the above discussion, the place of supply of the intermediary services would be the location of the ‘C’ and he has to discharge CGST and SGST as place of supply and location of ‘C’ is in same State.
Recent advance rulings
Case 1: In the case of Micro Instruments (Vishakhar Prashant Bhave), (GST-ARA-23/2018-19/B-87) Mumbai dated 10.08.2018 Maharashtra authority for advance ruling (MAAR)
Facts: Micro Instruments (In short ‘MI’) is providing services to its Principals at Germany, by way of procuring Purchase Orders (P.O.) from the parties in India, for which MI receives commission in CFE. After the negotiations are concluded, the prospective customer in India places the order directly on the Principals at Germany, arranges for remittance of purchase price arrived at and the material is directly supplied to customers by the foreign Principals.
Issue: Whether the commission received by MI as an “intermediary” in International/cross border transaction, for acting as a Broker or facilitator, in procuring from an Indian Customer/s purchase order/s (P.O.) for importing Laboratory Equipment from Germany is liable to GST either under CGST/SGST Act, 2017 or the IGST Act, 2017?
Ruling: Commission received by MI in CFE for rendering services as an ‘Intermediary’ between an exporter abroad receiving such services and an Indian importer of an equipment is not an export of service. Said supply will be treated as inter-state supply and IGST will be levied @18.
Case 2: In V serv Global Pvt Ltd [2018-TIOL-263-AAR-GST] it was held that back office support services to overseas companies undertaken by the applicant are for and on behalf of the clients to facilitate supply of goods and services between their clients and their customers. Applicant clearly is covered and falls in the definition of “intermediary” as defined under the IGST Act and, therefore, provisions pertaining to ‘place of supply’ in case of intermediary services as provided in sub-section 8 of section 13 are relevant.
Comments: The AAR has not considered the aspect of main service provided by applicant to overseas company on its own account. The service provided on principal to principal basis and not acting as an agent is completely ignored in the above said AAR.
Case 3: In the recent advance ruling in case of M/s Ansys Software PVT LTD [2019-TIOL-321-AAR-GST]
The applicant is providing two type of services in separate agreements with its parent co.
1. Marketing & pre sales technical support services – In this applicant undertakes the understanding of customer’s requirement, presentations, demonstrations, explores business opportunity, once the order is placed applicant used to co-ordinate with the customers, helps in follow up for collection of invoice value from customers in India, applicant receives consideration fixed as a percentage sale of the order value
Held: The services provided is intermediary services falling under purview of S. 2(13) of IGST Act.
Comments: The authority has notedly grasped the actual nature of transaction which are required to be treated separately rather than treating them as ancillary services with conjunction to the principal supply as different contracts were entered for the transactions and concluded accordingly.
2. Post sales technical services – In this applicant used to provide technical support (such as support through email, telephone, web etc.) to the customer of parent company and in return parent co. to pay consideration for the same
Held: The services provided is classified as Information technology support services
Comments: The services may fall under export of services provided satisfied conditions, the authority has analyzed the terms the supplier [person supplying goods or services] and recipient of services [the person liable to pay consideration]
Case 4: NES Global Specialist Engineering Services Pvt Ltd [2019-TIOL-64-AAR-GST].
NES is supplier of manpower services to highly technical industries such as Oil & Gas, Power etc. NES India and NES Abu Dhabi have proposed to enter into a Master service agreement (MSA) through which NES India will provide support service in respect of the foreign business carried on by NES Abu Dhabi
Held: Transaction covered under the MSA between the applicant and NES Abu Dhabi is a Zero-rated supply and is to be considered as an export of service under the GST Act
Comments: The transaction between group companies NES India and NES Abu Dhabi is for pure services for providing support services to co. and accordingly considered as an export of services and not an intermediary service.
Note: Advance ruling is applicable to assessee who seeks it and to his set of facts. It is not applicable to others. It may be followed only when it is in line with GST provisions.
Hence, from the above discussion, it is evident that there is only a thin line of difference in case of ‘intermediary’ and such services provided by supplier located in India would be taxable as Intra State supply requiring to charge CGST and SGST on such transactions and it cannot be treated as export of services.
Further certain AAR’s have adversely given the rulings in the favour of revenue by ignoring the support services done on own account by supplier creating a confusion in the industry.
A separate remuneration/agreement could be set out for acting as intermediary and separate for providing support services, whereby intermediary for enabling sale of goods/supply of services is liable to GST. On such remuneration applicable GST could be collected and paid and support services to qualify as export of services [provided all conditions are satisfied] support services are covered in section 13(2) of IGST Act, 2017 which provides the place of supply of service is location of service receiver outside India. Drafting of separate agreements would be better providing exact scope with the actuality of the services which would be helpful in avoiding litigations.
It is suggested that drafting of the agreement in detail with the segregation of the scope of intermediary services and any others support services to be provided by such persons and also it would be better if intermediary person bifurcates the method of charging remuneration to fixed basis for the outsourced support effort to capture the reason for the assignment for the cost-plus part on actual basis.
Special thanks to CA Roopa Nayak for vetting this article
For any further clarifications reach at [email protected]