‘Supply’ Under The Revised Model GST Law

The Revised Model GST Law was placed in public domain on 26^th November 2016. In the GST Law, the taxable event would be SUPPLY. Under the existing laws there were multiple taxable events, i.e. manufacturing, provision of services, sales, etc. Under the GST law a single taxable event ‘supply’ will replace the multiple taxable events. Hence it is the most important part of the GST law, as it will determine the taxability or otherwise in the GST law.

Let us discuss the concept of Supply, as provided under the Model GST Law. The definition of Supply in the Model GST Law, is an inclusive one. It is contained in Section 3 of the Model GST Law. Apart from Section 3, Schedules I to IV are provided which explain various provisions related to supply.

SUPPLY includes all forms of supply of goods and/or services such as sale, transfer, barter, exchange, license, rental, lease or disposal made or agreed to be made for a consideration by a person in the course or furtherance of business.

IMPORT OF SERVICES

• To be treated as supply if received for a consideration, whether for personal use or business use.
• However if import of services is received without any consideration, then it will be treated as supply if it is received by a Taxable person from a related person or from any of his other establishment outside India, and it is in course or furtherance of business.
  

MATTERS TO BE TREATED AS SUPPLY EVEN IF MADE WITHOUT CONSIDERATION

• Permanent transfer/disposal of business assets where input tax credit has been availed on such assets.
• Supply of goods or services between related persons, or between distinct persons as specified in section 10, when made in the course or furtherance of business.
• Supply of goods—
  • by a principal to his agent where the agent undertakes to supply such goods on behalf of the principal, or
  • by an agent to his principal where the agent undertakes to receive such goods on behalf of the principal.

The Central Government or State Government, may upon recommendation of the Council, notify the transactions that are to be treated as a supply of goods and not as supply of services, or a supply of services and not as supply of goods. Schedule II of the Model law specifies the matters to be treated as supply of goods or supply of services.

Matters to be 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
• Where goods forming part of the assets of a business are transferred or disposed of by or under the directions of the person carrying on the business so as no longer to form part of those assets, whether or not for a consideration.
• Supply of goods by any unincorporated association or body of persons to a member thereof for cash, deferred payment or other valuable consideration.
  

Matters to be treated as Supply of Services

• Any transfer of goods or of right in goods or of undivided share in goods without the transfer of title thereof.
• Any lease, tenancy, easement, licence to occupy land.
• Any lease or letting out of the building including a commercial, industrial or residential complex for business or commerce, either wholly or partly.
• Any treatment or process which is being applied to another person’s goods.
• Where, by or under the direction of a person carrying on a business, goods held or used for the purposes of the business are put to any private use or are used, or made available to any person for use, for any purpose other than a purpose of the business, whether or not for a consideration, the usage or making available of such goods is a supply of services.
• Construction of a complex, building, civil structure or a part thereof, including a complex or building intended for sale to a buyer, wholly or partly, except where the entire consideration has been received after issuance of completion certificate, where required, by the competent authority or before its first occupation, whichever is earlier.
• Temporary transfer or permitting the use or enjoyment of any intellectual property right;
• Development, design, programming, customisation, adaptation, upgradation, enhancement, implementation of information technology software;
• Agreeing to the obligation to refrain from an act, or to tolerate an act or a situation, or to do an act;
• Works contract including transfer of property in goods (whether as goods or in some other form) involved in the execution of a works contract;
• Transfer of the right to use any goods for any purpose (whether or not for a specified period) for cash, deferred payment or other valuable consideration; and
• Supply, by way of or as part of any service or in any other manner whatsoever, of goods, being food or any other article for human consumption or any drink (other than alcoholic liquor for human consumption), where such supply or service is for cash, deferred payment or other valuable consideration.
  

ACTIVITIES OR TRANSACTIONS WHICH SHALL BE TREATED NEITHER AS A SUPPLY OF GOODS NOR A SUPPLY OF SERVICES

• Services by an employee to the employer in the course of or in relation to his employment.
• Services by any Court or Tribunal established under any law for the time being in force.
• The functions performed by the MP/MLA/MLC/ Members of Local Bodies.
• The duties performed by any person as a Chairperson or a Member or a Director in a body established by the Central Government or a State Government or local authority.
• Services by a foreign diplomatic mission located in India.
• Services of funeral, burial, crematorium or mortuary including transportation of the Deceased
• Other Transactions notified by the Central or State Govt, upon the recommendation of the Council.

ACTIVITIES OR TRANSACTIONS UNDERTAKEN BY THE CENTRAL GOVERNMENT, A

STATE GOVERNMENT OR ANY LOCAL AUTHORITY WHICH SHALL BE TREATED

NEITHER AS A SUPPLY OF GOODS NOR A SUPPLY OF SERVICES

1. Services provided by a Government or local authority to another Government or local authority excluding the following services:

(i) services by the Department of Posts by way of speed post, express parcel post, life insurance and agency services;

(ii) services in relation to an aircraft or a vessel , inside or outside the precincts of a port or an aircraft; or

(iii) transport of goods or passengers.

2. Services provided by a Government or local authority to individuals in discharge of its statutory powers or functions such as-

(i) issuance of passport, visa, driving licence, birth certificate or death certificate; and

(ii) assignment of right to use natural resources to an individual farmer for the purpose of agriculture.

3. Services provided by a Government or local authority or a governmental authority by way of:

(i) any activity in relation to any function entrusted to a municipality under article 243W of the Constitution;

(ii) any activity in relation to any function entrusted to a Panchayat under article 243G of the Constitution;

(iii) health care; and

(iv) education

4. Services provided by Government towards-

(i) diplomatic or consular activities;

(ii) citizenship, naturalization and aliens;

(iii) admission into , and emigration and expulsion from India;

(iv) currency, coinage and legal tender , foreign exchange;

(v) trade and commerce with foreign countries , import and export across customs frontiers, interstate trade and commerce; or

(vi) maintenance of public order.

5. Any services provided by a Government or a local authority in the course of discharging any liability on account of any tax levied by such Government or authority.

6. Services provided by a Government or a local authority by way of –

(i) tolerating non-performance of a contract for which consideration in the form of fines or liquidated damages is payable to the Government or the local authority under such contract; or

(ii) assignment of right to use any natural resource where such right to use was assigned by the Government or the local authority before the 1st April, 2016:

PROVIDED that the exemption shall apply only to service tax payable on one time charge payable, in full upfront or in installments, for assignment of right to use such natural resource.

7. Services provided by Government by way of deputing officers after office hours or on holidays for inspection or container stuffing or such other duties in relation to import or export of cargo on payment of Merchant Overtime Charges (MOT).

8.  Services provided by Government or a local authority by way of-

(i) registration required under any law for the time being in force; or

(ii) testing, calibration, safety check or certification relating to protection or safety of workers, consumers or public at large, required under any law for the time being in force.

The concepts of Composite Supply and Mixed Supply have been introduced in the Model GST Law.

COMPOSITE SUPPLY means a supply made by a taxable person to a recipient comprising two or more supplies of goods or services, 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;

Illustration : Where goods are packed and transported with insurance, the supply of goods, packing materials, transport and insurance is a composite supply and supply of goods is the principal supply.

A composite supply comprising two or more supplies, one of which is a principal supply, shall be treated as a supply of such 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 such supply does not constitute a composite supply;

Illustration: A supply of a package consisting of canned foods, sweets, chocolates, cakes, dry fruits, aerated drink and fruit juices when supplied for a single price is a mixed supply. Each of these items can be supplied separately and is not dependent on any other. It shall not be a mixed supply if these items are supplied separately.

A mixed supply comprising two or more supplies shall be treated as supply of that particular supply which attracts the highest rate of tax.