This is my humble attempt to recognize the ambiguities appears at prima facie while reading CGST Act & IGST Act and experienced some difficulties in understanding the provisions for the reason of language, relevancy, missing reference, contradiction within Section or with other section etc. It is desired that Act must be framed in such a way that it can be understood by any laymen and any type of ambiguities may be avoided. Te same also are being put up through departmental channel as desired by the government inviting suggestions regarding GST Law.
(A) Ambiguities experienced in CGST Act
Issue-1: Tax rate where composite supply consist of principle supplies of different supplier with different tax rate.
S.8. The tax liability on a composite or a mixed supply shall be determined in the following manner, namely: -
(a) 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.
Confusion: If goods item-1 of value of Rs. 1 lakh (Tax 5%) and item-2 of value Rs.1000(tax 28%) and charging expense towards packing, freight etc Rs. 2000/- (total Rs. 103000/-), than at which rate tax required to be charged?
Issue-2: Ambiguity for the word 'good' when S.17(5)(h) read with S.35(6).
Relevant provisions are reproduced below.
S.17. (5) Notwithstanding anything contained in sub-section (1) of section 16 and subsection (1) of section 18, ITC shall not be available in respect of the following, namely: -
(h) goods lost, stolen, destroyed, written off or disposed of by way of gift or free samples.
S.35. (6) Subject to the provisions of clause (h) of sub-section (5) of section 17, where the registered person fails to account for the any supplies in accordance with the provisions of sub-section (1), the Supdt shall determine the amount of tax payable on the any supplies that are not accounted for, as if such any supplies had been supplied by such person and the provisions of section 73 or section 74, as the case may be, shall, mutatis mutandis, apply for determination of such tax.
Confusion: For what the word 'goods' referred in S.17(5)(h)? i.e for input or finished product? If for input and ITC required to be reversed, no demand can be made under S.35(6) considering it as finished goods. If for, goods, and demand under S.35(6), no reversal of ITC required. Both can't be invoked simultaneously.
Issue-3: Ambiguity for liability to pay tax for revised invoice.
Relevant Provisions are reproduced below.
S.25 (1) Every person who is liable to be registered U/S 22 or section 24 shall apply for registration in every such State/UT in which he is so liable within 30 days from the date on which he becomes liable to registration, in such manner and subject to such conditions as may be prescribed:
S.25(12) A registration or a UIN shall be deemed to have been granted after the expiry of the period prescribed under sub-section (10), if no deficiency has been communicated to the applicant within that period.
S.31. (3) Notwithstanding anything contained in sub-sections (1) and (2)-
(a) a registered person may, within one month from the date of issuance of certificate of registration and in prescribed manner, issue a revised invoice against the invoice already issued during the period beginning with the effective date of registration till the date of issuance of certificate of registration to him
S.32. (1) A person who is not a registered person shall not collect in respect of any Supplies any amount by way of tax under this Act.
Confusion: Person liable for registration on 01.07.2017 and apply within 30 days, say on 28.07.2017 and granted Registration on 31.07.2017. In terms of S.32, supplier can't collect tax during the period from 01.07.2017 to the date grant of registration hence require tom issue Bill of Supply without tax and not tax invoice. As per S.31(3) he has to issue revise invoice within one month from the date of issuance of certificate of registration and in prescribed manner, issue a revised invoice against the invoice already issued during the period beginning with the effective date of registration till the date of issuance of certificate of registration. So, how he issue invoice before granting registration and who will bear the tax not charged during the period from 01.07.2017 to effective date of registration?
Issue-4: Why Credit/Debit note can be issued by supplier only in terms of S.34?
As per S.34(1) &(3), Credit/Debit Note are required to be issued by supplier only and not by recipient. On the contrary in business, the same may be issued by recipient also. Credit note issued by one is treated as debit note by counter-part and account can be settled accordingly. In case, supplier can be recipient has to deduct amount of value and tax and supplier not respond, it may result in difficulties for recipient.
Issue-5: As referred in S.34(2), passing of incidence of tax by whom? How can it be ascertained?
As per S.34(2) when supplier issue credit note, his liabilities shall be adjusted, however, as per proviso, no reduction in output tax liability of the supplier shall be permitted, if the incidence of tax and interest on such supply has been passed on to any other person.
Confusion: Incident pass on by whom and to whom? It is not supplier as he already charged/recovered to recipient. If recipient, how supplier can now that recipient has passed on incident to other person?
Issue-6: Contradiction appears between S.39(8) S.39(10).
Relevant Provisions are reproduced below.
S.39(8) Every registered person who is required to furnish a return under sub-section (1) or sub-section (2) shall furnish a return for every tax period whether or not any supplies of any supplies have been made during such tax period(i.e. NIL Return by Normal/Composite supplier only).
S.39(10) A registered person shall not be allowed to furnish a return for a tax period if the return for any of the previous tax periods has not been furnished by him.
Confusion: As per S.39(8) only Registered person under normal/composite scheme has to file NIL Return, hence not applicable to other. However, As per S.39(10) registered person shall not be shall not be allowed to furnish a return for a tax period if the return for any of the previous tax periods has not been furnished by him. So, for the category other than Normal/Composite Scheme, both provisions appears as contradictory.
Issue-7: Where refund claimed for unutilized ITC, what is meaning of deducting ITC provisionally accepted from provisional refund of 90% claim?
S.54(6) Notwithstanding anything contained in sub-section (5), the AC/DC may, in the case of any claim for refund on account of zero-rated Supplies made by registered persons, other than such category of registered persons as may be notified by the Government , refund on a provisional basis, 90% of the total amount so claimed, excluding the amount of ITC provisionally accepted, in such manner and subject to such conditions, limitations and safeguards as may be prescribed and thereafter make an order under sub-section (5) for final settlement of the refund claim after due verification of documents furnished by the applicant.
Confusion: As per S.54(6), claim for refund on account of zero-rated Supplies refund on a provisional basis, 90% of the total amount so claimed, excluding the amount of ITC provisionally accepted. When S.54(3) is for claim refund of any unutilized ITC, what does it mean by 'excluding the amount of ITC provisionally accepted'?
Issue-8: As per S.54(8), refund admissible only where be paid to the applicant if amount if such tax paid on a supply which is not provided and for which invoice has not been issued, or where a refund voucher has been issued.
Confusion: What for the cases where Invoice issued but cancelled and/or refund voucher has been issued/not issued?
Issue-9: Confusion is that in case of S.62(1),S. 63 and S.64(1), i.e. where in case of assessment for non-filer, unregistered person or summary assessment wherein aggregate tax liability can be ascertained, but without month-wise brake-up in absence of monthly return or relevant documents, from which date interest to be calculated?
Issue-10: Meaning of word 'his' used in S.65(6).
Relevant Provisions are reproduced below.
S.65(6) On conclusion of audit, the AC/DC shall, within 30 days, inform the registered person, whose records are audited, about the findings, his rights and obligations and the reasons for such findings.
Confusion: - The word 'his' required to be specified, means - the assessee or JAC/Auditor?
Issue-11: Time limit to issue SCN or reply thereof U/S 76(2).
Relevant Provisions are reproduced below.
S.76(2) Where any amount is required to be paid to the Government under sub-section (1), and which has not been so paid, the AC/DC may serve on the person liable to pay such amount a notice requiring him to show cause as to why the said amount as specified in the notice, should not be paid by him to the Government and why a penalty equivalent to the amount specified in the notice should not be imposed on him under the provisions of this Act.-
Confusion: Is there no any time limit for issue notice or for reply thereof?'
Issue-12: The date from date of collection of tax or due date to deposit the same to Govt. Exchequer?.
Relevant Provisions are reproduced below.
S.76(4) The person referred to in sub-section (1) shall in addition to paying the amount referred to in sub-section (1) or sub-section (3) also be liable to pay interest thereon at the rate specified U/S 50 from the date such amount was collected by him to the date such amount is paid by him to the Government
Confusion: Interest from the date of collection or from due date to pay the same to Govt. Exchequer?
Issue-13: Relevancy between S.76(10) & (11).
Relevant Provisions are reproduced below.
S.76(10) Where any surplus is left after the adjustment under sub-section (9), the amount of such surplus shall either be credited to the Fund or refunded to the person who has borne the incidence of such amount.
S.76(11) The person who has borne the incidence of the amount, may apply for the refund of the same in accordance with the provisions of section 54.
Confusion: S.76(10) appears as complete provision, so department require to pay surplus amount to person who borne the incidence of tax, irrespective of fact, he apply or not. Whereas S.76(11) he has to apply for the same. How such people get knowledge that he is eligible for refund?
Also, if both provisions have relation, then phrase 'subject to S.76(11)' required to insert in S.76(10).
Issue-14&15: As per S.84(a), where such Govt. Dues are enhanced in such appeal, revision or other proceedings, the Commissioner shall serve upon the taxable person or any other person another notice of demand in respect of the amount by which such Govt. Dues are enhanced.
Confusion: (1) The subject Notice under which Section i.e. 76/74 or 84?
(2) When amount enhanced as outcome of any appeal, revision or other proceedings, it is clear that assessee is well-aware with the issue, contested and knew outcome also. Hence why need to issue notice for such enhanced amount which lead to another adjudication process which is not necessary as the issue is clear from outcome of such appeal, revision or other proceedings.
Issue-16: Clarity for phrase 'the words 'wholly or to the extent of such transfer' in S.85(1).
Relevant Provisions are reproduced below.
S.85. (1) Where a taxable person, liable to pay tax under this Act, transfers his business in whole or in part, by sale, gift, lease, leave and license, hire or in any other manner whatsoever, the taxable person and the person to whom the business is so transferred shall, jointly and severally, be liable wholly or to the extent of such transfer, to pay the tax, interest or any penalty due from the taxable person upto the time of such transfer, whether such amount has been determined before such transfer, but has remained unpaid or is determined thereafter.
Confusion: the words 'wholly or to the extent of such transfer' is not appears proper when used together, hence required to be clarified. If both words are used properly, how decision can be taken for the period?
Issue-17: S.85(2)-Liability of transferee, if he does not require obtaining registration.
Relevant Provisions are reproduced below.
85. (2) Where the transferee of a business referred to in sub-section (1) carries on such business either in his own name or in some other name, he shall be liable to pay tax on the Supplies effected by him w.e.f. the date of such transfer and shall, if he is a registered person under this Act, apply within the prescribed time for amendment of his certificate of registration.
Confusion: What if the said transferee not requires obtaining registration? Why he has to pay as per provision?
Issue-18: Similarity between S.88(3) & 89(1).
Relevant Provisions are reproduced below.
S.88. (3) When any private company is wound up and any amount determined under this Act on the company for any period, whether before or in the course of or after its liquidation, cannot be recovered, then every person who was a director of such company at any time during the period for which the tax was due shall, jointly and severally, be liable for the payment of such amount, unless he proves to the satisfaction of the Commissioner that such non-recovery cannot be attributed to any gross neglect, misfeasance or breach of duty on his part in relation to the affairs of the company.
S.89. (1) Notwithstanding anything contained in the Companies Act, 2013, where any amount due from a private company in respect of any Supplies for any period cannot be recovered, then, every person who was a director of the private company during such period shall, jointly and severally, be liable for the payment of such amount unless he proves that the non-recovery cannot be attributed to any gross neglect, misfeasance or breach of duty on his part in relation to the affairs of the company.
Confusion-19: S.88(3) is similar to S.89(1). Therefore both are required to be clubbed at one place.
Issue: No recovery under S.89(1) in terms of S.89(2) may resulted into loss of tax?
Relevant Provisions are reproduced below.
S.89(2) Where a private company is converted into a public company and the amount in respect of any Supplies for any period during which such company was a private company cannot be recovered before such conversion, then, nothing contained in sub-section (1) shall apply to any person who was a director of such private company in relation to any amount in respect of such Supplies of such private company:
Provided that nothing contained in this sub-section shall apply to any personal penalty imposed on such director.
Confusion: Than who is responsible to pay the Arrears? A loss to the Govt. Exchequer?
Issue-20&21: As per S.96 & 99, the Authority and Appellate Authority respectively for Advance Ruling constituted under the provisions of a SGST Act or a UTGST Act shall be deemed to be the Appellate Authority in respect of that State or Union territory.
Confusion: It is well-understood that authority constituted by state/UT is deemed for that state/UT, so the provision is confusing. Does such provision wish to say that such authority would be authority for jurisdictional State/UT for all taxes i.e. SGST/UTGST/CGST/IGST? As there is no provision noticed in the Act for Authority for advance ruling and Appellate Authority for CGST & IGST.
Issue-22: As per S.106, the Authority or the Appellate Authority shall, subject to the provisions of this Chapter, have power to regulate its own procedure.
Confusion: From S.96 & 99, it appears that there would be state/UT wise Authority and Appellate Authority respectively for Advance Ruling. Does it mean that there would be different procedures in each and every state/UT?
Issue-23: S.97(2)(e) is for advance ruling can be sought for question of determination of the liability to pay tax on any goods or services or both.
Confusion: The subject provision is for (i) determination of the liability of tax to be paid by the applicant or (ii) to determination of the liability of person who may be responsible to pay liability?
Issue-24: As per proviso to S.98(2), the Authority shall not admit the application where the question raised in the application is already pending or decided in any proceedings in the case of an applicant under any of the provisions of this Act:
Confusion: How can it be ascertained that the question raised in the application is already pending or decided in any proceedings in the case of an applicant at other location/formation? For same applicant or similar issue for other also?
Issue-25: Meaning of 'Applicant' in S.100.
Relevant Provisions are reproduced below.
S.100. (1) The concerned officer, the jurisdictional officer or an applicant aggrieved by any advance ruling pronounced under sub-section (4) of section 98, may appeal to the Appellate Authority.
(2) Every appeal under this section shall be filed within a period of thirty days from the date on which the ruling sought to be appealed against is communicated to the concerned officer, the jurisdictional officer and the applicant:
Provided that the Appellate Authority may, if it is satisfied that the appellant was prevented by a sufficient cause from presenting the appeal within the said period of thirty days, allow it to be presented within a further period not exceeding thirty days.
Confusion: What is the meaning of 'Applicant' as referred in proviso to S.100(2)? It appears that it not cover the concerned officer or the jurisdictional officer as in S.100(1), the concerned officer, the jurisdictional officer or an applicant are specifically mentioned who may appeal to the Appellate Authority. Who departmental office are not covered for relaxation for extension?
Issue-26: S.105(2) The Authority or the Appellate Authority shall be deemed to be a civil court for the purposes of section 195, but not for the purposes of Chapter XXVI of the Code of Criminal Procedure, 1973, and every proceeding before the Authority or the Appellate Authority shall be deemed to be a judicial proceedings within the meaning of sections 193 and 228, and for the purpose of section 196 of the Indian Penal Code.
Confusion: It can be presumed but not clear from the wording of Section that Section 195, sections 193 and 228 of which Act? It can be imagined but there should be clarity.
Issue-27: S.111(4) All proceedings before the Appellate Tribunal shall be deemed to be judicial proceedings within the meaning of sections 193 and 228, and for the purposes of section 196 of the IPC, and the Appellate Tribunal shall be deemed to be civil court for the purposes of section 195 and Chapter XXVI of the CRPC,1973.
Confusion: It can be presumed but not clear from the wording of Section that Sections 193 and 228 of which Act? It can be imagined but there should be clarity.
Issue-28: S.107(2) The Commissioner may, on his own motion, or upon request from the Commissioner of State/UT, call for and examine the record of any proceedings in which an adjudicating authority has passed any decision or order under this Act or the SGST/UTGST Act , for the purpose of satisfying himself as to the legality or propriety of the said decision or order and may, by order, direct any officer subordinate to him to apply to the Appellate Authority within 6 months from the date of communication of the said decision or order for the determination of such points arising out of the said decision or order as may be specified by the Commissioner in his order.
Confusion: within six months from the date of communication of the said decision or order- to whom, the Commissioner or concerned officer?
Issue-29: In both proviso to S.107(11), the phrase 'unless the appellant' be replaced with 'unless the noticee'.
Relevant Provisions are reproduced below.
S.107(11) The Appellate Authority shall, after making such further inquiry as may be necessary, pass such order, as it thinks just and proper, confirming, modifying or annulling the decision or order appealed against but shall not refer the case back to the adjudicating authority that passed the said decision or order:
Provided that an order enhancing any fee or penalty or fine in lieu of confiscation or confiscating goods of greater value or reducing the amount of refund or ITC shall not be passed unless the appellant has been given a reasonable opportunity of showing cause against the proposed order:
Provided further that where the Appellate Authority is of the opinion that any tax has not been paid or short-paid or erroneously refunded, or where ITC has been wrongly availed or utilized, no order requiring the appellant to pay such tax or ITC shall be passed unless the appellant is given notice to show cause against the proposed order and the order is passed within the time limit specified U/S 73 or section 74.
Confusion: Appellant may be department also. But from the wording thereafter, it appears that the same is used for noticee. Therefore it is proper that the phrase 'unless the appellant' be replaced with 'unless the noticee'.
Issue-30&31: For S.108, (1) Appointment/Constitution of Revisional Authority missing. (2) Enhancing the decision or order?
Relevant Provisions are reproduced below.
108. (1) Subject to the provisions of section 121 and any rules made thereunder, the Revisional Authority may, on his own motion, or upon information received by him or on request from the Commissioner of State tax, or the Commissioner of Union territory tax, call for and examine the record of any proceedings, and if he considers that any decision or order passed under this Act or under the SGST Act or the UTGST Act by any officer subordinate to him is erroneous in so far as it is prejudicial to the interest of revenue and is illegal or improper or has not taken into account certain material facts, whether available at the time of issuance of the said order or not or in consequence of an observation by the Comptroller and Auditor General of India, he may, if necessary, stay the operation of such decision or order for such period as he deems fit and after giving the person concerned an opportunity of being heard and after making such further inquiry as may be necessary, pass such order, as he thinks just and proper, including enhancing or modifying or annulling the said decision or order.
Confusion: (1) As per S.2(99), Revisional Authority means as referred in S.108. However S.108 only describe function of the same. Therefore, it is not known who can be Revisional Authority i.e. person, committee or body of some qualified person and what should be the qualification criteria and how the same can be appointed or constituted.
(2) What is meaning of enhancing the said decision or order? As word used 'modifying' itself covers 'enhancing' and 'lessening'.
Issue-32: S.109(11) If the Members of the National Bench, Regional Benches, State Bench or Area Benches differ in opinion on any point or points, it shall be decided according to the opinion of the majority, if there is a majority, but if the Members are equally divided, they shall state the point or points on which they differ, and the case shall be referred by the President or as the case may be, State President for hearing on such point or points to one or more of the other Members of the National Bench, Regional Benches, State Bench or Area Benches and such point or points shall be decided according to the opinion of the majority of Members who have heard the case, including those who first heard it.
Confusion: The underlined phrase mislead that all the members of the National Bench, Regional Benches, State Bench or Area Benches etc altogether differ. Hence proper words may like this 'Members amongst the National Bench or Regional Benches or State Bench or Area Benches'.
Issue:
Issue-33: Provision to count enhanced penalty is not clear.
Relevant Provisions are reproduced below.
S.124. If any person required to furnish any information or return U/S 151, -
(a) without reasonable cause fails to furnish such information or return as may be required under that section, or
(b) willfully furnishes or causes to furnish any information or return which he knows to be false,
He shall be punishable with a fine which may extend to Rs.10,000/- and in case of a continuing offence to a further fine which may extend to one hundred rupees for each day after the first day during which the offence continues subject to a maximum limit of Rs.25000/- rupees.
Confusion: 'In case of a continuing offence' for which further fine Rs. 100/- per day upto Rs. 25000/- can be imposed. It is better to explain with example how impose fine upto Rs.10000/- and how fine Rs. 100/- per day upto Rs. 25000/- to be calculated for continuing offence.
Issue-34: S.126. (1) No officer under this Act shall impose any penalty for minor breaches of tax regulations or procedural requirements and in particular, any omission or mistake in documentation which is easily rectifiable and made without fraudulent intent or gross negligence.
Confusion: Tax Regulation means 'Regulation' as referred in S.165/166 or general provisions of this Act/Rules/Notifications etc?
Issue-35: As per S.129(1)(a), detained/seized goods and conveyance shall be released where the owner of the goods comes forward for payment of such tax and penalty.
Confusion: What about conveyance, if owner of goods don't come forward to pay tax & penalty?
Issue-36: S.129(1)(b) on payment of the applicable tax and penalty equal to the fifty per cent. of the value of the goods reduced by the tax amount paid thereon and, in case of exempted goods, on payment of an amount equal to five per cent. of the value of goods or Rs.25,000/-, whichever is less, where the owner of the goods does not come forward for payment of such tax and penalty;
Confusion: In absence of proper coma, the phase ' the fifty per cent. of the value of the goods reduced by the tax amount paid thereon' can be read in two ways- i.e.
(i) 50% of (value-tax paid) or (ii) (50% of value)-(tax paid).
Therefore it is required that provisions should amended in such a way that it indicate proper intention.
Issue-37&38: S.129(3) The AC/DC detaining or seizing goods/conveyances shall issue a notice specifying the tax and penalty payable and thereafter, pass an order for payment of tax and penalty under clause (a) or clause (b) or clause (c).
Confusion: (i) As S.129(1), while read with provision of S.129(6), appears as complete provision for penalties as mentioned in (a),(b)or(c) thereof, irrespective of any other provision for notice, therefore provisions of S.129(3) is appears as futile, either there should be mention of S.129(3) in S.121(1).
(ii)To whom such Notice/Order U/S 129(3) to be issued i.e. to Custodian or Owner of the goods?
Issue-39: As per S.142(11)(a) &(b), it is understood that irrespective of S.12&13 (i.e. time of supply), tax is not leviable under this Act to the extent the tax was leviable on the said goods/Service under the VAT ACT or the Chapter V of Finance Act'1944 respectively. However S.142(11)(c) is reproduced as under.
S.142(11)(c) where tax was paid on any supply both under the VAT ACT and under Chapter V of the Finance Act, 1994, tax shall be leviable under this Act and the taxable person shall be entitled to take credit of VAT or service tax paid under the existing law to the extent of supplies made after the 01.07.2017 and such credit shall be calculated in prescribed manner.
Confusion: Is it refer to both tax paid for same transaction of supply? If yes, than it is better to refer transaction as Works Contract. Also, why person shall be entitled to take credit of VAT or service tax paid and not both?
Issue-40: S.147. The Government may notify certain supplies of goods as deemed exports, where goods supplied do not leave India, and payment for such supplies is received either in Indian rupees or in convertible foreign exchange, if such goods are manufactured in India.
Confusion: Deemed export only covers goods manufactured in India and not to goods imported and supplied to recipient covered in deemed export?
Issue-41: Contradiction between S.152(1)&(2)
152. (1) No information of any individual return or part thereof with respect to any matter given for the purposes of section 150 or section 151 shall, without the previous consent in writing of the concerned person or his authorised representative, be published in such manner so as to enable such particulars to be identified as referring to a particular person and no such information shall be used for the purpose of any proceedings under this Act.
(2) Except for the purposes of prosecution under this Act or any other Act for the time being in force, no person who is not engaged in the collection of statistics under this Act or compilation or computerization thereof for the purposes of this Act, shall be permitted to see or have access to any information or any individual return referred to in section 151.
Confusion: As per S.152(1), such information shall not be used for the purpose of any proceedings under this Act whereas as per S.152(2) the same can be cannot be used except for the purposes of prosecution under this Act, means can be used for prosecution. Thus, both provision are appears as contradictory with each-other.
Issue-42: What is meaning of 'First Occupation' as used in Schedule-II,Sl.5?
Schedule-II, 5. Supply of services- The following shall be treated as supply of services, namely:-
(b) 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 after its first occupation, whichever is earlier.
Confusion: What is meaning of 'First Occupation'?
(B) Ambiguities experienced in IGST Act
Issue-43: Situation where Supplier in India procure goods from foreign and directly supply therefrom to other foreign destination.
Relevant Provisions are reproduced below.
S.2(5) “export of goods” with its grammatical variations and cognate expressions, means taking goods out of India to a place outside India;
S.7(5) inter-State Supplies,-
(a) when the supplier is located in India and the place of supply is outside India;
(b) to or by a SEZ Unit/developer; or
(c) in the taxable territory, not being an intra-State supply and not covered elsewhere in this section, shall be treated to be a supplies in the course of inter-State trade or commerce.
Confusion: Considering provision of S.2(5) & S.7(5), where Supplier in India procure goods from foreign and directly supply therefrom to other foreign destination, the said supply can't be considered as EXPORT but inter-state supply attracting Tax. This is somehow appears as embarrassing for exporters and required to be reviewed when all other criteria are fulfilled.
Issue-44: IGST S.10. (1) The place of supply of goods, other than supply of goods imported into, or exported from India, shall be as under,--
(b) where the goods are delivered by the supplier to a recipient or any other person on the direction of a third person, whether acting as an agent or otherwise, before or during movement of goods, either by way of transfer of documents of title to the goods or otherwise, it shall be deemed that the said third person has received the goods and the place of supply of such goods shall be the principal place of business of such person;
Confusion: From above underlined phrase in S.10(1)(b) i.e. 'or any other person on the direction of a third person, whether acting as an agent', it cannot be ascertained whether phrase 'whether acting as an agent' relates to phrase 'any other person' or to phrase 'a third person'. Hence it created ambiguity in understanding the provision in correct meaning.
Issue-45&46: S.12(11) The place of supply of telecommunication services including data transfer, broadcasting, cable and direct to home television services to any person shall, -
(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:
Provided that where the address of the recipient as per the records of the supplier of services is not available, the place of supply shall be location of the supplier of services:
Provided further that if such pre-paid service is availed or the recharge is made through internet banking or other electronic mode of payment, the location of the recipient of services on the record of the supplier of services shall be the place of supply of such services.
Confusion: (i)Proviso-1 to (d) already covered in (d), hence appears as duplication and extraneous.
(ii) (d) is for case where address of recipient is not available on record of supplier. However in Proviso-2, underlined phrase i.e. 'on the record of the supplier of services' refers to which supplier? If it is meant for supplier of subject telecommunication service, than the same doesn't fall here. If the same is used for supplier of internet banking or other electronic mode of payment, address can be with that supplier and how supplier of telecommunication service get it?
Issue-47: S.17. (1) Out of the IGST paid to the Central Government,-
(b) in respect of inter-State supplies where the registered person is not eligible for input tax credit;
Confusion: For what the underlined phrase 'registered person' used in IGST S.17(1)(b) - i.e. used for registered supplier or for recipient?
The author can also be reached at mkgandhicustom@gmail.com
CAclubindia
