It is a known principle that ‘nothing comes free in business’ and the same is a proven fact in the recent ruling by Maharashtra Authority for Advance Ruling (AAR) in the case of Biostadt India Ltd and the circular 92/11/2019-GST which clarifies issues on treatment of sales promotion schemes under GST.
Several promotional schemes are offered by suppliers to increase the sales volume and to attract new customers. It is a common practice among certain sections of trade and industry, to provide free samples and gifts. For example, pharmaceutical companies often provide drug samples to their stockists, dealers, medical practitioners etc., without charging any consideration.
The Hon’ble Maharashtra AAR vide its Advance Ruling “GST-ARA-72/2018-19/B-165 held that ITC on “gifts” will not be available when no GST is being paid on their disposal.
Whether Input Tax Credit (ITC) can be claimed by the tax payer on procurement of Gold coins which are to be distributed to the customers at the end of scheme period for achieving the stipulated payment criteria. Further, whether ITC can be claimed in all such similar situations?
LEGAL PROVISIONS RELEVANT TO THE CASE
1. Empowering section for claiming input tax: Section 16(1) of the CGST Act, creates a vested right upon the registered person to claim credit of ITC on goods or services or both procured by the tax payer provided they are used for furtherance of business.
2. Furtherance of Business: The notable requirement under Section 16(1) is that the credit of ITC which is to be claimed should be used in course of furtherance of business. The term furtherance of business is not defined in the law. Dictionary meaning of furtherance implies advancement, promotion of scheme etc.
3. Blocked Credits: Section 17(5)(h) of the CGST Act provides for blocked credits. This section contains a non-obstante clause, which states that even if all the conditions mentioned in the empowering sections for availing ITC have been fulfilled, for the following supply, ITC cannot be availed:
Goods lost, stolen, destroyed, written off or disposed by way of free samples or “gift”
FACTS OF THE CASE
1. The applicant had the contractual agreement with the customer wherein if he purchases certain amount of company’s product or makes payment in a prescribed manner then he shall be entitled to a gold coin of specific weight. Gold coin will not be available to the customer unless he specifies the criteria laid under the scheme.
2. The applicant contended that gold coins distributed to customers at the end of scheme period cannot be qualified as “gift” and further contended that the sales linked scheme are purely for advancement of company’s business. Each and every act done for business comes with a consideration. Applying same analogy, gold coins are not given freely to the customers.
CONCLUSIONS BY THE MAHARASHTRA AAR
1. The gold coins are not inputs because the distribution of gold coin is not in line with the business model of the company. Gold coins are not essential for continuity in supply and the distribution of gold coins are not concerned with the making of taxable supply.
2. As per section 16(1) of the Act, a tax payer is entitled to take credit of input tax charged on any supply of goods or services to him which are used in the course of furtherance of business i.e. this section disallows ITC against input goods/services used for non-business purposes.
3. Section 17(5) (h) stipulates that credit shall not be available in respect of goods lost, stolen, destroyed, written off or disposed of by the way of gift or free samples.
4. A gift is normally seen as an enticement to customers as in the subject case which would bear heavily on the consumers in making purchase of particular quantities and above.
5. Further, if the giver of the gift does not pay output tax on the same then compensation to the department would be the foregoing of ITC on such gifts.
The above ruling is also supported by the clarificatory circular 92/11/2019-GST issued by CBIC, which gives clarification on the following issues:
|Nature of supply||Clarification||Treatment of ITC||Valuation/ Taxability|
|Free sample of gifts||Goods or services or both which are supplied free of cost shall not be treated as supply under GST||No ITC available according to the section 17(5)(h)||Not required|
|Buy one get one offer||It is not an individual supply of free goods but a case of two or more individual supplies where a single price is charged.||ITC available||Taxability of such supply will be dependent upon as to whether the supply is a composite supply, or a mixed supply and rate of tax shall be determined accordingly.|
|Buy more save more offers||Such type of discounts offered by the suppliers shall be excluded to determine the value of supply provided the provisions to avail discount as per section 15 are satisfied.||ITC available||Value of discount will be excluded from the transaction value|
|Secondary discounts (not known at the time of supply)||Secondary discounts are not excluded to determine the value of supply, as these discounts are provided on the basis of the credit notes||No impact||Value of discount will not be excluded from the transaction value|
On the basis of the aforementioned ruling and the circular, it can be said that all the free supplies that are given to promote the sales are to be treated as gifts as these are primarily supplies without consideration. Therefore, any supply on which tax is not payable, input tax credit cannot be availed. Any of the conditions to avail the ITC as per section 16(1) will not be fulfilled in such supplies, hence non-obstante clause of Section 17(5) shall be applicable, thereby concluding that any input on free supplies is blocked and not claimable.