Treatment of Write Back Amount in GST Era

Background: 

The taxpayers may have long outstanding the creditors whose dues are not paid. The non-payment of dues may be on account of many business decisions.

As per prudent accounting policies, the long outstanding dues are reviewed periodically and written back (credited to profit & loss account) in the books of accounts.

Write back arises on account of following reasons: 

1) Overdue outstanding which is not been paid

2) Sundry balance written back

3) Double booking of invoices & other similar errors and rectifications

As mentioned earlier, such write back amount is offered for income and also thereby for income tax calculation after arriving the profit on considering write back amount.

Issues to be addressed

1. Whether such income can be covered as activity / transaction and

2. whether to be considered as a supply under the GST Act?

Legal Provisions:

> Section 7 of CGST Act provides Meaning & Scope of Supply which is reproduced below :

Section 7: 

(1) For the purposes of this Act, the expression “supply” includes–

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

b. import of services for a consideration whether or not in the course or furtherance of business;

c. the activities specified in Schedule I, made or agreed to be made without a consideration; and

d. the activities to be treated as supply of goods or supply of services as referred to in Schedule II.

(2) Notwithstanding anything contained in sub-section (1),–

a. activities or transactions specified in Schedule III; or

b. such activities or transactions undertaken by the Central Government, a State Government or any local authority in which they are engaged as public authorities, as may be notified by the Government on the recommendations of the Council, shall be treated neither as a supply of goods nor a supply of services.

> We need to understand Meaning & definition of each word highlighted in bold.

• “goods” means every kind of movable property other than money and securities but includes actionable claim, growing crops, grass and things attached to or forming part of the land which are agreed to be severed before supply or under a contract of supply;
• “services” means anything other than goods, money and securities but includes activities relating to the use of money or its conversion by cash or by any other mode, from one form, currency or denomination, to another form, currency or denomination for which a separate consideration is charged;
• “Activity”means the combination and operation undertaken by corporate body, whether or not, they amount to business, trade, profession in the ordinary service.  Activity is referred in different act as per their objective for giving the meaning of action.
• The schedule II of the CGST Act, 2017 has below entry which can be relevant in this matter.

(e) agreeing to the obligation to refrain from an act, or to tolerate an act or a situation, or to do an act; and

• (31) “consideration”in relation to the supply of goods or services or both includes––

(a) any payment made or to be made, whether in money or otherwise, in respect of, in response to, or for the inducement of, the supply of goods or services or both, whether by the recipient or by any other person but shall not include any subsidy given by the Central Government or a State Government;

(b) the monetary value of any act or forbearance, in respect of, in response to, or for the inducement of, the supply of goods or services or both, whether by the recipient or by any other person but shall not include any subsidy given by the Central Government or a State Government:

Provided that a deposit given in respect of the supply of goods or services or both shall not be considered as payment made for such supply unless the supplier applies such deposit as consideration for the said supply;

• “supplier” in relation to any goods or services or both, shall mean the person supplying the said goods or services or both and shall include an agent acting as such on behalf of such supplier in relation to the goods or services or both supplied;
• “recipient”of supply of goods or services or both, means:

(a) where a consideration is payable for the supply of goods or services or both, the person who is liable to pay that consideration;

(b) where no consideration is payable for the supply of goods, the person to whom the goods are delivered or made available, or to whom possession or use of the goods is given or made available; and

(c) where no consideration is payable for the supply of a service, the person to whom the service is rendered, and any reference to a person to whom a supply is made shall be construed as a reference to the recipient of the supply and shall include an agent acting as such on behalf of the recipient in relation to the goods or services or both supplied;

> Now, let us understand the definition of disposal:

Marriam Webster Dictionary: Definition of “Disposal” 

2: the act or process of disposing: such as

a: orderly placement or distributionthe disposal of troops along the ridge

b: REGULATION, ADMINISTRATION

c: the act or action of presenting or bestowing (see BESTOW sense 4) somethingdisposal of favorsthe disposal of property

d: systematic destructionespecially : destruction or transformation of garbagetrash disposalthe disposal of nuclear waste

Collins Dictionery : Definition of “Disposal”

uncountable noun [oft noun NOUN]

Disposal is the act of getting rid of something that is no longer wanted or needed.

…methods for the permanent disposal of radioactive waste. [+ of]

…waste disposal sites.

Synonyms: throwing away, dumping[informal], scrapping, removal   More Synonyms of disposal

Business Dictionery : Definition of “Disposal”

disposal

1. the act or means of getting rid of something

2. placement or arrangement in a particular order

3. a specific method of tending to matters, as in business

4. (Commerce) the act or process of transferring something to or providing something for another

5. the power or opportunity to make use of someone or something (esp in the phrase atone’s disposal)

6. (Civil Engineering) a means of destroying waste products, as by grinding into particles

7. Also (for senses 2–5): disposition

Law of Lexicon Dictionary : 

“Disposal” is frequently used in the sense of regulating, ordering, conducting a thing or a business BAGGETT Vs MEUX 13 MJ CS 232.

Disposal is a personal act, it depends upon the will of individual, removal of thing from oneself is involves, is the disposal, the goods ordered of the thing is comprehended in their disposal.

> Further, CBIC has published FAQ for understanding of meaning & scope of supply. Some of the FAQs are relevant, which is reproduced below:

Q 2. What is the scope of ‘supply’ under the GST law?

Ans. The term ‘supply’ is wide in its import covers all forms of supply of goods or services or both that includes 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. It also includes import of service. The GST law also provides for including certain transactions made without consideration within the scope of supply

Q 4. What are the necessary elements that constitute supply under CGST/SGST Act? 

Ans. In order to constitute a ‘supply’, the following elements are required to be satisfied, i.e.-

(i) the activity involves supply of goods or services or both;

(ii) the supply is for a consideration unless otherwise specifically provided for;

(iii) the supply is made in the course or furtherance of business;

(iv) the supply is made in the taxable territory;

(v) the supply is a taxable supply; and

(vi) the supply is made by a taxable person

Q 9. What do you mean by “supply made in the course or furtherance of business? 

Ans. “Business” is defined under Section 2(17) include any trade, commerce, manufacture, profession, vocation, adventure or wager etc. whether or not undertaken for a pecuniary benefit. Business also includes any activity or transaction which is incidental or ancillary to the aforementioned listed activities. In addition, any activity undertaken by the Central Govt. or a State Govt. or any local authority in which they are engaged as public authority shall also be construed as business. From the above, it may be noted that any activity undertaken included in the definition for furtherance or promoting of a business could constitute a supply under GST law.

Conclusions:

After understanding the basic provision w.r.t. meaning & scope of supply, let us understand the transactions of write back  which is offered to income tax:

There are two views emerging from the reading of above provisions and facts of the matter.

• The word activity has a vide meaning and the same is not defined in the act.
• In this case, the person writing back the amount is getting the consideration (as the liabilities are written off).
• The consideration is for activity of writing back which is covered under the word “disposal”.
• These activities are “services” as any activity other than goods is covered under the ambit of the services considering the wide definition of the services under the GST Act.
• The write back amount is nothing but income for the person writing back the amount.
• In terms of Section 16(2) of CGST Act 2017, if payment is not made within 180 days, amount equal to the ITC needs to pay as outward tax liability.

In such circumstances, the person who is writing back in the books of accounts carries out the activities for consideration and credited to other income or expenses. Therefore is subjected to GST as “Services” under Schedule II of the CGST Act, 2017 i.e. “TO DO AN ACT”.

However, there can be another view that such transactions cannot be treated as Supply on the following grounds:

1. Mere accounting entry of write back do not necessarily will be supply,

2. For supply of goods and services there need to be “supplier” as well as “recipient”

3. There is no recipient in this case, as the definition of the recipient states that “the recipient is the one who has obligation to pay the consideration”

4. In write back cases, the recipient i.e. vendor may not know details of write back by the company.

5. Further even after write back the company may decide to honour the payment to the vendor.

6. In other words, the write back is books of account do not give finality to the transaction.

7. As per Section 16 (2) of the CGST Act, 2017 in case of non-payment to the supplier, ITC needs to be reversed. Further GST on the same amount will lead to double taxation.

What Auditors should do in case of such conflicting views?

> The auditor needs to identify the amount written back during the year.