Tax Insights
13 July 2023
GST to be levied on online gaming, important clarifications on ISD mechanism and warranty replacements, other compliances, anti-evasion and dispute resolution–
related announcements – 50
thGST Council meeting
In brief
The 50th meeting of the GST Council (Council) was held on 11 July 20231 and was chaired by the Union Finance and Corporate Affairs Minister Nirmala Sitharaman. The Council has made several important
announcements relating to the substantive as well as procedural aspects. The most notable one is the proposal to levy a GST rate of 28% on the full-face value of transactions in casinos, race courses and online gaming.
Recommendations were also made in respect of rules governing the appointments and conditions of presidents and members of the GST Appellate Tribunal and the applicability of certain provisions of the Finance Act, 2023 with ef f ect from 1 August 2023. Moreover, while some tax rates were rationalised across multiple sectors, the Council has also provided two important clarifications: (a) Input Service Distributor (ISD) is currently optional and will be made mandatory prospectively through legislative amendment; and (b) Warranty replacements are neither taxable, nor is the reversal of input tax credit (ITC) required. Some other important clarifications are to be issued including the applicability of tax collected at source (TCS) where more than one e-commerce operator is involved in an online transaction, calculation of interest on wrongful claim of ITC, f ormula for calculation of refund etc. Finally, a host of announcements have been made in the interest of affording ease of compliances to businesses.
We have summarised the key recommendations in this Tax Insights under the below five broad sections.
Section 1: Key GST rates or taxability related recommendations Section 2: Other recommendations impacting substantive liability Section 3: Key compliance related recommendations
Section 4: Recommendations relating to tax dispute resolution Section 5: Other administrative recommendations
1 Press Release on the 50th GST Council Meeting dated 11 July 2023
In detail
Section 1: Key GST rates or taxability related recommendations 1. Key GST rates
Particulars Council’s recommendation Our comments GST rates f or casinos,
race courses and online gaming
• Online gaming and horse racing to be included in Schedule III as taxable actionable claims.
• Tax rate for online gaming, horse racing and casinos to be notified at 28%.
• Taxable value for the purpose of charging tax would be as follows – - Casinos: Face value of chips
purchased
- Horse racing and online gaming: Full value of the bets placed
This comes as a big impact to the online gaming industry, which has been f acing controversies on this issue f or quite some time now. This change is likely to adversely impact the industry. The recommendations are agnostic of whether the
online gaming is ‘game of skill’ or
‘game of chance’, and a blanket 28% rate is regardless proposed to be applied on the full value of money pooled (not prize money).
Clarif ication on levy of compensation cess on utility vehicles
Entry No. 52B of the compensation cess rate notif ication2 which levies a GST cess of 22% to be amended and to cover all utility vehicles which meet the below parameters.
• Length exceeding 4000mm
• Engine capacity exceeding 1500cc
• Ground clearance of 170mm and above (in unladen condition)
Through circular no. 189/01/2023- GST dated 13 January 2023, the Central Board of Indirect Taxes and Customs (CBIC) had clarified that the conditions under Entry 52B have to be cumulatively satisfied.
The Council has now made recommendations to amend the entry and provide that the term
‘ground clearance’ would mean ground clearance in unladen conditions.
Capacity-based taxation and Special
Composition Scheme
Capacity-based taxation and Special Composition Scheme have been approved by the Council for manufacturers of tobacco, pan masala and other similar items. The Council made the following notable recommendations.
• Special procedure to be followed for registration of machines and for filing special monthly returns. Specified manuf acturers required to obtain machine-based registration.
• Penal provisions to be incorporated under section 122A of the Central Goods and Services Tax Act, 2017 (CGST Act) f or f ailure to register or comply.
Substantive and procedural impact on the manuf actures in this sector will need a deeper evaluation once the f ine print of the Special
Composition Scheme is rolled out.
2 Notification No. 1/2017-Compensation Cess (Rate) dated 28 June 2017
• Provisions to be notified and notification to be issued under section 16(4) of the Integrated Goods and Services Tax Act, 2017 (IGST Act) to provide for
restriction of IGST ref und in respect of exports of tobacco, pan masala and other similar items as well as mentha oil f rom 1 October 2023.
2. Other changes related to GST rates or exemptions
Particulars Council’s recommendations
GST rate rationalisation exemptions for goods
• Ad valorem rate, as was applicable on or before 31 March 2023, may be re- notif ied to levy compensation cess on pan masala and tobacco products where retail sale price is not required to be declared.
• Exemptions –
- IGST exemption to be extended on imports for p ersonal use of Dinutuximab (Quarziba) medicine.
- IGST exemption to be extended on imports of medicines and Food for Special Medical Purposes (FSMP) used in the treatment of rare diseases f or personal use as well as imports by Centres of Excellence for Rare Diseases or any person or institution on recommendation by any of the listed Centres of Excellence.
• Clarification on applicability of reverse charge on supply of raw cotton, including kala cotton, by agriculturists to cooperatives.3
• Annexure 4B (Handbook of Procedures) of Foreign Trade Policy, 2023 specifies the list of entities eligible for availing IGST exemption on import of gold, silver or platinum. RBL and ICBC Banks to be included in the list of specified banks eligible for such exemption.
• GST rate on uncooked or unfried snack pellets to be reduced to 5%3.
• GST rate on imitation zari thread to be reduced from 12% to 5%3.
• GST rate on fish soluble paste to be reduced from 18% to 5%3.
• Also, a few other rate changes have been proposed with an intention to rationalise GST rates on certain goods and to regularise past inconsistencies (specified in Annexure 1).
GST rate rationalisation or exemptions for services
• Director’s services
- The Council has clarified that the services provided by the director in the capacity of a director of company or body corporate to company will be taxed under reverse charge mechanism in the hands of the said company or body corporate as specified in the notification4.
3 Past periods to be regularised on ‘as is basis’ on account of genuine doubts.
4 Notification No. 13/2017 - CTR (Sl. No. 6) dated 28 June 2017
Particulars Council’s recommendations
- However, such notified services, if provided by the director in her or his private or personal capacity, are not taxable under reverse charge mechanism.
• Supply of food and beverages in cinema halls
- Supply of food and beverages in cinema halls to b e taxable as restaurant service (and GST rate of 5% to be applicable) if the following two
conditions are met.
(i) such supply is by way of or as part of a service; and
(ii) such supply is independent of the cinema exhibition service.
- Where the sale of tickets and food and beverages are clubbed together and such bundle satisfies the test of composite supply, the entire supply will attract GST at the rate applicable to the service of exhibition of cinema as the principal supply.
• Exemption for satellite launch services to be extended to services supplied by organisations in the private sector to encourage start-ups.
Annexure 1:
Recommendations for regularisation of interpretational issues
Particulars Period
Trauma, spine and arthroplasty implants Prior to 18 July 2022
Desiccated coconut 1 July 2017 to 27 July 2017
Plates and cups made of areca leaves Prior to 1 October 2019
Biomass briquettes 1 July 2017 to 12 October 2017
Section 2: Other recommendations impacting substantive liability
Particulars Council’s recommendation Our comments Circulars to clarify
ref und related issues
Ref und of accumulated ITC under section 54(3) of the CGST Act for a tax period to be restricted to ITC on inward supplies ref lected in Form GSTR-2B of the said tax period or any previous tax period. This is consequent to the amendment in rule 36(4) of the Central Goods and Services Tax Rules, 2017 (CGST Rules) with ef fect from 1 January 2022.
With ef fect from 1 January 2022, availment of ITC was restricted to the amount appearing in Form GSTR-2B. To bring the refund provision in consonance with ITC provisions, the Council has proposed to issue circulars restricting the refund of accumulated ITC to the extent available in Form GSTR-2B. The press release suggests that clarif ication will also be issued to the ef f ect that any unclaimed amount f rom the previous tax
period (as reflected in Form GSTR- 2B) may be included in calculating the amount ref undable.
The value of export goods, to be included while calculating ‘adjusted total turnover’ in the f ormula under rule 89(4) of the CGST Rules, will be determined as per the Explanation inserted in the said sub-rule with ef f ect from 5 July 20225.
This brings about a parity in the value of export of goods adopted f or the numerator as well as denominator for the purpose of the f ormula to calculate the amount of ref und under rule 89(4) of the CGST Rules.
Currently, the value of export of goods in the numerator is deemed to be the lesser of free-on-board (FOB) or invoice value, while for the denominator, the value of goods exported is taken as the invoice value only which inaptly reduces the amount ref undable to exporters (since invoice value, in most cases, is higher than the FOB value).
Clarif ication to be provided regarding admissibility of refund in cases where export of goods, or the realisation of payment for export of services, is made af ter the prescribed time limit provided under rule 96A of the CGST Rules.
The law is currently not clear regarding the consequence of realisation of export proceeds beyond the timelines prescribed under rule 96A of the CGST Rules on the ref und claims of exporters.
Ideally, although the refund claims (to the extent of delay in realisation) should be allowed subject to regularisation, the impact would be clear once the circular is issued.
ISD currently optional and to be made
mandatory prospectively
A circular is to be issued to clarify the f ollowing –
1. That the ISD mechanism is not
mandatory as per the present GST law f or distribution of ITC on common input services procured from third parties.
2. Issues regarding taxability of internally generated services provided within distinct persons.
The Council has recommended that GST law may be amended to make the ISD mechanism mandatory prospectively for services procured from third parties.
The issue of whether ISD is a mandatory mechanism or whether it is an alternative to the cross-charge mechanism has been debated since the inception of GST. The current clarif ication is a big sigh of relief f or businesses who have not adopted the ISD mechanism hitherto, particularly in the services sector. Questions have been raised during audits, and notices have been issued in certain cases where the ISD mechanism has not been f ollowed. Earlier, a circular was issued and withdrawn and referred to the law committee after
deliberations at the Council. This circular is expected to put the
5 Inserted vide notification no. 14/2022 CT dated 5 July 2022 (which deems the value of goods exported to be lesser of the FOB value or invoice value)
Particulars Council’s recommendation Our comments
debate to rest for now with regard to the services procured from third parties.
Taxpayers will need to prepare for the legislative amendment to make ISD mandatory in the future.
The clarif ication relating to
internally generated services is also important to assess the implications relating to the cross charge of supplies between distinct persons.
Calculation of interest on ITC wrongly claimed
A circular is to be issued to clarify that the amount of ITC wrongly availed and utilised is to be calculated after considering the ITC balances in the electronic credit ledger under all the heads (i.e. IGST, CGST and State Goods and Services Tax (SGST)) taken together, for calculating interest liability under section 50(3) of the CGST Act read with rule 88B of the CGST Rules.
The CGST Act provides for an order of utilisation of the credit wherein the balance of IGST is to be utilised and exhausted before moving to the utilisation of CGST.
Similar provisions are also present in the respective State GST Acts.
Hence, presently where IGST has been wrongly availed and utilised, the department may demand interest on such amount even though the taxpayer may have CGST and SGST credit balances.
Similar restrictions apply in case of CGST and SGST as well. While the detailed circular is awaited, it is likely that the limitation posed by the af oresaid restriction is likely to go away.
To elaborate, in case of incorrect utilisation of IGST, balance of CGST or SGST would also be required to be taken into consideration for the purpose of arriving at the amount of ITC incorrectly availed and utilised. In other words, interest may not be payable where the taxpayer has enough CGST or SGST balance.
No GST or ITC reversal on warranty
replacements
A circular is to be issued to clarify that there is no requirement for manufacturers to discharge GST on repair services and replacement of parts during warranty period. Moreover, there is no requirement f or ITC reversal by the manufacturer on parts issued to fulfil warranty obligations.
This is consistent with the position under the erstwhile indirect tax laws and industry practice, while the authorities have been raising questions about this. The circular is likely to put to rest the controversy on this issue.
Clarif ication on TCS by e-commerce operator (ECO)
A circular is to be issued to clarify TCS liability where multiple ECOs are involved in a single online transaction.
The Press Release1 merely expresses the intention to clarify TCS applicability in such cases.
The actual implications will become clear once the circular is issued.
ITC reversal on sales by duty-free shops (DFS) at arrival terminal
Explanation 3 to be inserted after rule 43 of the CGST Rules to prescribe that the value of supply of goods from DFS at arrival terminals in international airports to incoming passengers to be included in the value of exempt supplies for the purpose of reversal of ITC.
This issue has been under
discussion in the Council meetings f or quite some time6. Amendments were also proposed in the Finance Act, 2023 with an intention to disallow ITC to DFS located at the arrival terminal and by doing so, to consequently eliminate the question of allowing refund of ITC to DFS located at the arrival terminal. The current amendment proposed in rule 43 of the CGST Rules is a consequential procedural amendment.
Place of supply for supply of goods to unregistered person
Insertion of clause (ca) in sub-section (1) of section 10 of the IGST Act to clarify the place of supply of goods to unregistered persons.
This appears to be an important amendment. However, the notif ication must be awaited to understand the implications of this recommendation.
Holding company holding securities in subsidiary company
A circular is to be issued to clarify that mere holding securities of a subsidiary company by a holding company are not a supply of service and cannot be taxed under GST.
This comes as a great relief for companies to whom notices have been issued by the department demanding tax on the said activity.
While the Council
recommendations are limited to this scenario, the CBIC may also look at clarif ying vice versa and security holding qua group companies as well.
Section 3: Key compliance related recommendations
Particulars Council’s recommendation Our comments Compliances for Goods
Transport Agency (GTA)
• Requirement to file a declaration annually f or paying tax under forward charge has been eliminated. The option, once exercised, would be deemed to continue in the subsequent f inancial years (FYs) until a declaration is f iled to revert to reverse charge mechanism.
• Declaration for exercising the option in a FY can be f iled during the period from
These recommended procedural changes will not only afford ease of compliances for GTAs but will also saf eguard them from potential litigation exposure arising from venial procedural lapse in exercising their option to pay tax under f orward charge.
6 Refer discussion in Agenda Item 3 (Part II) XVI of the 47th GST Council meeting held on 28 June 2022
Particulars Council’s recommendation Our comments 1 January to 31 March of the preceding
FY7. Registered Online
Inf ormation Database Access and Retrieval services (OIDAR) service provider located outside India required to capture business-to- business (B2B) transaction details
Amendment to rule 64 and Form GSTR-5A of the CGST Rules to mandate registered OIDAR service providers located outside India to f urnish the details of supplies made to registered persons in India in their monthly return.
The change in the return f ormat has been proposed with the intention to create database on Goods and Services Tax Network (GSTN) which will enable the authorities to track the tax to be paid on reverse charge basis by such registered persons in India.
Supply by ECO or OIDAR to unregistered person
Where supply of services is by or through an ECO or OIDAR to an unregistered recipient, the name and full address of the recipient are not required on the tax invoice, and only the name of the state of the recipient would suffice. Rule 46(f) of the CGST Rules is to be amended accordingly.
The change has been proposed to f acilitate ease of compliances by ECO or OIDAR suppliers.
E-way bill for gold and precious stones
Insertion of rule 138F of the CGST Rules to mandate requirement of e-way bill for intra-state movement of gold or precious stones under Chapter 71.
The recommendation is consequent to the deliberations in the 47th GST Council Meeting, wherein the states were given an option to decide whether they wanted to make e- way bills mandatory for intra-state movement of gold and other precious metals.
Relaxation in relation to annual compliances
• Relaxations provided in respect of various tables of Forms GSTR-9 and GSTR-9C (as allowed earlier f or FY 2021–22), extended for FY 2022–23.
• Exemption from filing of annual return (in Forms GSTR-9/ 9A) for taxpayers having aggregate annual turnover upto INR0.02bn (as allowed earlier f or FY 2021–22), extended for FY 2022–23.
ITC reconciliation Circular no. 183/15/2022-GST dated 27 December 2022 laid down the procedure f or verification of ITC in cases involving dif ference in ITC availed in Form GSTR-3B vis-a-vis that available as per Form GSTR- 2A f or FYs 2017–18 and 2018–19. A circular is recommended to be issued to provide a similar procedure for the period f rom 1 April 2019 to 31 December 2021.
The recommendation may be implemented through an amendment in circular no.
183/15/2022-GST dated 27 December 2022 itself or vide a separate circular.
7 Currently, the declaration is to be filed by 15 March of the preceding FY.
Measures to curb excess ITC availment
Mechanism for system-based intimation to taxpayers in respect of the excess
availment of ITC in Form GSTR-3B vis-a- vis Form GSTR-2B above a certain threshold, along with the procedure of auto-compliance on the part of the taxpayers, to explain the reasons for the said difference or take remedial action in respect of such difference. Rule 88D and Form DRC-01C to be inserted in CGST Rules along with an amendment in rule 59(6) of the CGST Rules.
This will help in reducing ITC mismatches and curbing fraudulent ITC claims.
Amendment in registration related procedures under CGST Rules
Several amendments recommended to be made in CGST Rules to strengthen the registration process and deal with f raudulent registrations.
Details contained in Annexure 2.
Due date f or monthly compliances extended f or the State of Manipur
Due date f or filing Forms GSTR-1, GSTR- 3B and GSTR-7 f or the months of April, May and June extended till 31 July 2023 f or the State of Manipur.
The extension has been proposed in view of the potential difficulties being f aced by taxpayers in Manipur in undertaking compliances.
Annexure 2
Amendments recommended to be made in CGST Rules to strengthen the registration process and deal with f raudulent registrations.
Relevant Rule Particulars Impact
Rule 10A Furnishing of bank details Time limit to furnish prescribed documents earlier of –
• 30 days (earlier, it was 45 days)
• Filing of statement of outward supply under section 37 of the CGST Act (earlier it was section 39 of ibid) Rule 21A Suspension of registration
Amendment in sub-rule 2A and insertion of sub-rule 4
Recommendation for system-based suspension of registration and automatic revocation of such system-based suspension based upon compliance with rule 10A of the CGST Rules.
Rule 59 Form and manner of furnishing details of outward supplies
Recommendation to restrict the
f urnishing of details of outward supplies in Form GSTR-1 or using IFF, if the conditions under rule 10A of the CGST Rules are not complied with.
Relevant Rule Particulars Impact
Rule 9 and Rule 25 Verif ication of the application and approval Physical verification of business premises in certain cases
Simplified the procedure for registration as of now; the presence of the applicant is not required.
In high-risk cases, physical verification may be required even where Aadhaar Authentication has been done.
Section 4: Recommendations relating to tax dispute resolution
Particulars Council’s recommendation Our comments Goods and
Services Tax Appellate Tribunal (Appointment and Conditions of Service of President and Members) Rules, 2023
• The Council recommended notifying the
‘Goods and Services Tax Appellate Tribunal (Appointment and Conditions of Service of President and Members) Rules 2023’, governing the appointment of the President and members of the proposed GST Appellate Tribunal (Tribunal) with the necessary conditions thereof .
• The effective date for notifying the provisions related to the constitution of the GST Appellate Tribunal as brought in by Finance Act, 2023 is
recommended as 1 August 2023.
• The Council nominated the Chief Secretary of Maharashtra as one of the members of the ‘Search cum selection committee’ who will be involved in the appointment or reappointment of members of various benches of the Tribunal, other than the Technical Member (State) of the respective State benches.
• Regarding the number of State benches to be constituted, the Council
recommended that the same be begun in a phased manner.
• The recommended Rules on the appointment of Tribunal Members would provide clarity in terms of remuneration and other terms and conditions of service of the members of the Tribunal.
• The recommended timeline for early setting up of the Tribunal, nominating the Chief Secretary of Maharashtra as one of the members of Search and Selection Committee, is expected to set in motion the process of setting up Tribunal benches.
• Phased constitution of State benches would also enable addressing issues f aced by the industry due to the lack of Tribunal, in a phased manner.
Manual f iling of appeal against rejection order for the revision of Forms TRAN 1 and TRAN 2
• The Council recommended a special procedure for filing of appeal manually against orders rejecting the revision of Forms TRAN 1 and TRAN 2 f iled in pursuance of the directions of the Supreme Court case8.
• This would provide clarity to
taxpayers as well as the department and create a viable solution
considering both the requirements of law as well as the f acilities available on the GST portal.
Manual f iling of appeal under
• The Council recommended to provide f or manual filing of appeal to First
• The proposed amendments to these rules seem to provide for specific
8 Please click here to refer to our Tax Insights on the Supreme Court decision.
certain circumstance
Appellate Authority, in specified cases, under rules 108 (1) and 109(1) of the CGST Rules, by both taxpayers and the department.
circumstances permitting manual f iling of appeals before the first appellate authority, instead of allowing the entire discretion to the Commissioner to provide for manual f iling.
Extension of Amnesty Schemes
• The Council recommended extending the various amnesty schemes which were notified for non-filers of Forms GSTR-4, GSTR-9 and GSTR-10 returns, revocation of cancellation of registration and deemed withdrawal of best judgement orders issued on account of non-filing of Form GSTR-3B, till 31 August 2023 from the previous last date notified as 30 June 2023.
• The time extension for these amnesty schemes aims to provide relief to the taxpayers and for better compliance and can extend the benefits of the scheme to a larger set of taxpayers.
Procedure for recovery of tax and interest in terms of rule 88C(3) of the CGST Rules
Background
• Rule 88C was inserted in the CGST Rules with ef fect from 26 December 2022 to intimate the taxpayer of the dif ference in tax liability as reported in Forms GSTR-1 and GSTR-3B, where the dif ference exceeds a specified amount or percentage.
• The intimation of the difference is through Form DRC 01B, wherein the dif ferential tax liability is communicated through Part A. The taxpayer needs to either pay tax and furnish details in Part B or f ile reply by way of explanation for the dif ferences in Part B.
• Where taxes are not paid and no explanation is provided or the
explanation provided by the taxpayer is not accepted by the officer, then the same becomes recoverable in terms of rule 88C(3) of the CGST Rules.
Recommendation by the Council
• The Council has now recommended insertion of rule 142B in the CGST Rules and insertion of a Form GST DRC-01D to provide for the manner of recovery of the tax and interest in respect of the amount intimated under rule 88C(3) of the CGST Rules as mentioned in the above background.
• The proposed procedure and form need to be seen in the context of principles of natural justice and how the explanations given by the taxpayer will be taken into consideration.
• The threshold limits for the
dif ferences beyond which rule 88C of the CGST Rules will be invoked are still not clear and remain open.
Particulars Council’s recommendation Our comments Failure to f ile
annual returns
Form GSTR-3A to be amended to provide f or issuance of notice for their failure to f urnish annual return in Form GSTR-9 or Form GSTR-9A.
This amendment may potentially entail surge in litigation for taxpayers.
De-criminalisation of offenses
Sub-rule (3A) to be inserted in rule 162 of CGST Rules to prescribe the compounding amount f or various offenses under section 132 of the CGST Act.
Specifics can be known only once the notif ication is issued.
Section 5: Other administrative recommendations
• A circular to be issued to clarify that e-invoicing requirements also extend to the registered persons making supplies to Government Departments or establishments or Government agencies or local authorities or PSUs etc. who are registered solely for TDS purposes.
• Insertion of rule 163 in CGST Rules to provide for the manner and conditions of consent -based sharing of inf ormation. Issuance of a notification under section 158A of the CGST Act for notifying the system of
‘Account Aggregators’ as the systems with which information is to be shared by the common portal.
• Introduction of state-level coordination committee comprising both State and Center GST officers for knowledge sharing and coordinated efforts towards administrative and preventive measures. It appears that this is a step toward sharing of knowledge and administrative integration between state and central
departments. This is also apparent from the Model GST Audit Manual 2023 which mentions the government’s endeavour to develop a common platform for sharing important audit findings and other sources of relevant information to improve the quality and efficiency of audit.
• Risk-based biometric-based Aadhaar authentication of registration applicants to be tested. (participating states: Andhra Pradesh, Gujarat and Puducherry).
• Government of Ministers has recommended various IT system reforms to be introduced to curb frauds in GST.
The takeaways
A host of recommendations have been proposed at the Council Meeting, with quite a f ew notable ones. While these are only recommendations, it would be interesting to see how these are implemented. It would be pertinent to analyse the fine print of the ensuing circulars and notifications to understand their impact on businesses and other stakeholders. Moreover, greater insights will be available with respect to the background, underlying rationale, and expected future amendments once the detailed agenda and minutes of the meeting are made available.
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