Pravin Saraswat, FCA, CS, DISA
One of the avowed objectives of introducing GST is to provide seamless chain of input credit system so as to avoid the cascading effect of taxes. However, GST, in present form appears to defy this objective:
1. Nil or partial ITC Credit in the proposed Service Tax Rates:
Following services would not have ITC or ITC would be kept limited to input services, thereby fracturing the seamless flow:
|S. No.||DESCRIPTION OF SERVICES||GST RATE|
|1.||Transport of goods by rail||5% with ITC of input services|
|2.||Transport of passengers by rail (other than sleeper class)||5% with ITC of input services|
|3.||Services of goods transport agency (GTA) in relation to transportation of goods [other than used household goods for personal use]||5% No ITC|
|4.||Services of goods transport agency in relation to transportation of used household goods for personal use.||5% No ITC|
|5.||Transport of goods in a vessel||5% with ITC of input services|
|6.||Renting of Motorcab
(If fuel cost is borne by the service recipient, then 18% GST will apply)
|5% No ITC|
|7.||Transport of passengers, by-
(i) Air conditioned contract/stage carriage other than motorcab;
(ii) a radio taxi.
|5% No ITC|
|8.||Transport of passengers by air in economy class||5% with ITC of input services|
|9.||Transport of passengers, with or without accompanied belongings, by air, embarking from or terminating in a Regional Connectivity Scheme Airport.||5% with ITC of input services|
|10.||Supply of tour operators’ services||5% No ITC|
|11.||Leasing of aircrafts under Schedule II [5 (f)] by a scheduled airlines for scheduled operations||5% with ITC of input services|
2. Place of supply in IGST Act:
Section 12 of the IGST Act, 2017 prescribes a few situations, where the place of supply would be either location of property or location of supplier. Due to place of supplying services falling in a state (intra-state) which is different from the state of the registered recipient person, the recipient of services would not be able to claim the input credit of CGST/SGST on such services. Some of provisions as contained in Section 12 are:
12(3) The place of supply of services,––
(a) directly in relation to an immovable property, including services provided by architects, interior decorators, surveyors, engineers and other related experts or estate agents, any service provided by way of grant of rights to use immovable property or for carrying out or co-ordination of construction work; or
(b) by way of lodging accommodation by a hotel, inn, guest house, home stay, club or campsite, by whatever name called, and including a house boat or any other vessel; or
(c) by way of accommodation in any immovable property for organising any marriage or reception or matters related thereto, official, social, cultural, religious or business function including services provided in relation to such function at such property; or
(d) any services ancillary to the services referred to in clauses (a), (b) and (c), shall be the location at which the immovable property or boat or vessel, as the case may be, is located or intended to be located:
12(4) The place of supply of restaurant and catering services, personal grooming, fitness, beauty treatment, health service including cosmetic and plastic surgery shall be the location where the services are actually performed.
12(6) The place of supply of services provided by way of admission to a cultural, artistic, sporting, scientific, educational, entertainment event or amusement park or any other place and services ancillary thereto, shall be the place where the event is actually held or where the park or such other place is located.
12(10) The place of supply of services on board a conveyance, including a vessel, an aircraft, a train or a motor vehicle, shall be the location of the first scheduled point of departure of that conveyance for the journey.
12(11) The place of supply of telecommunication services including data transfer, broadcasting, cable and direct to home television services to any person shall,—
(a) in case of services by way of fixed telecommunication line, leased circuits, internet leased circuit, cable or dish antenna, be the location where the telecommunication line, leased circuit or cable connection or dish antenna is installed for receipt of services;
(c) in cases where mobile connection for telecommunication, internet service and direct to home television services are provided on pre-payment basis through a voucher or any other means,––Online GST Certification Course by TaxGuru & MSME- Click here to Join
(i) through a selling agent or a re-seller or a distributor of subscriber identity module card or re-charge voucher, be the address of the selling agent or re-seller or distributor as per the record of the supplier at the time of supply; or
(ii) by any person to the final subscriber, be the location where such prepayment is received or such vouchers are sold;
(d) in other cases, be the address of the recipient as per the records of the supplier of services and where such address is not available, the place of supply shall be location of the supplier of services:
12(14) The place of supply of advertisement services to the Central Government, a State 1 Government, a statutory body or a local authority meant for the States or Union territories identified in the contract or agreement shall be taken as being in each of such States or Union territories and the value of such supplies specific to each State or Union territory shall be in proportion to the amount attributable to services provided by way of dissemination in the respective States or Union territories as may be determined in terms of the contract or agreement entered into in this regard or, in the absence of such contract or agreement, on such other basis as may be prescribed.
It is important to note that service tax credit under the Finance Act, 2004 is available on some of the above services without requiring registration in the State/UT, however, GST is going to deny the CGST/SGST/UGST credit in future in some cases in absence of the registration in that state. For example, service tax credit on the expenses incurred for dealers’ meet organized in Goa for marketing its products is presently available but in the proposed GST, the recipient of service may not be eligible for such credit if recipient does not have GST registration in Goa.
3. Blocked credits in CGST Act, 2017:
Section 17(5) of the CGST Act, 2017 puts block on some of the credits in input services which shall not be available in respect of the following, namely:—
(a) motor vehicles and other conveyances except when they are used––
(i) for making the following taxable supplies, namely:—
(A) further supply of such vehicles or conveyances ; or
(B) transportation of passengers; or
(C) imparting training on driving, flying, navigating such vehicles or conveyances;
(ii) for transportation of goods;
(b) the following supply of goods or services or both—
(i) food and beverages, outdoor catering, beauty treatment, health services,cosmetic and plastic surgery except where an inward supply of goods or services or both of a particular category is used by a registered person for making an outward taxable supply of the same category of goods or services or both or as an element of a taxable composite or mixed supply;
(ii) membership of a club, health and fitness centre;
(iii) rent-a-cab, life insurance and health insurance except where-
(A) the Government notifies the services which are obligatory for an employer to provide to its employees under any law for the time being in force; or
(B) such inward supply of goods or services or both of a particular category is used by a registered person for making an outward taxable supply of the same category of goods or services or both or as part of a taxable composite or mixed supply; and
(iv) travel benefits extended to employees on vacation such as leave or home travel concession;
(c) works contract services when supplied for construction of an immovable property (other than plant and machinery) except where it is an input service for further supply of works contract service;
(d) goods or services or both received by a taxable person for construction of an immovable property (other than plant or machinery) on his own account including when such goods or services or both are used in the course or furtherance of business.
Explanation.––For the purposes of clauses (c) and (d), the expression “construction” includes re-construction, renovation, additions or alterations or repairs, to the extent of capitalisation, to the said immovable property;
(e) goods or services or both on which tax has been paid under section 10;
(f) goods or services or both received by a non-resident taxable person except on goods imported by him;
(g) goods or services or both used for personal consumption;
(h) goods lost, stolen, destroyed, written off or disposed of by way of gift or free samples; and
(i) any tax paid in accordance with the provisions of sections 74, 129 and 130.
Explanation.––For the purposes of this Chapter and Chapter VI, the expression “plant and machinery” means apparatus, equipment, and machinery fixed to earth by foundation or structural support that are used for making outward supply of goods or services or both and includes such foundation and structural supports but excludes—
(i) land, building or any other civil structures;
(ii) telecommunication towers; and
(iii) pipelines laid outside the factory premises.
(The author is a Jaipur based practicing Chartered Accountant and can be reached on 09829063908, firstname.lastname@example.org)