Overseas staff on deputation: CBIC alert over GST notices

CBIC Issues Caution Amid Surge in GST Demand Notices for Overseas Staff, Citing Complexity in Taxability Issues

The Central Board of Indirect Taxes and Customs (CBIC) has issued a cautionary directive to its field employees, highlighting the complexities arising from the recent surge in Goods and Services Tax (GST) demand notices on Indian companies with overseas staff deputed to India. The move follows a series of litigations and industry representations stemming from these notices, which collectively amount to demands running into hundreds of crores of rupees.

Background

• Spate of Demand Notices: A notable increase in GST demand notices has been observed, targeting companies spanning various sectors, including automotive, electronics, pharmaceuticals, and FMCG. The cumulative demands raised have raised concerns within the industry.
• Judgment in Northern Operating Systems Case: The demand notices were initiated based on a Supreme Court judgment dated May 19, 2022, in the case of Northern Operating Systems (NOS). The judgment addressed the secondment of managerial and technical staff to NOS by overseas group companies, deeming it a taxable service of 'manpower supply' subject to service tax.

CBIC's Cautionary Note

• Instruction to Field Officials: In an instruction dated December 13, CBIC cautioned high-ranking indirect tax officials about adopting a 'one-size-fits-all' approach in dealing with taxability issues related to the secondment of overseas staff.
• Nuanced Examination Emphasized: CBIC pointed out that a careful reading of the NOS judgment indicates the Supreme Court's emphasis on a nuanced examination based on the unique characteristics of each specific arrangement. The directive stresses the need for a tailored approach rather than relying on a singular test.
• Diverse Nature of Arrangements: The CBIC underscored the existence of multiple types of arrangements concerning the secondment of employees to Indian companies, highlighting that the tax implications may differ based on the specific nature of the contract and associated terms and conditions.
• Mechanical Application Warning: The CBIC explicitly cautioned against mechanically applying the Supreme Court decision to all cases, acknowledging the potential variations in factual scenarios. Experts suggest that differences in employment structures or reimbursement specifics could influence the applicability of the SC decision.

Expert Opinions

• Case-by-Case Analysis: Experts advocate for a case-by-case analysis, stressing that distinctions in employment arrangements and reimbursement structures could impact the applicability of the NOS judgment.
• Potential Arguments: One expert noted that if the facts of a case differ – for instance, if the Indian company directly employs overseas staff or if reimbursement is limited to social security – it might be possible to argue that the SC decision does not apply.

Conclusion

The cautionary directive from CBIC reflects a recognition of the intricate nature of taxability issues related to the secondment of overseas staff and aims to discourage a uniform application of the Supreme Court judgment. As the industry navigates the complexities of GST demands, the need for a nuanced examination tailored to each specific arrangement becomes paramount. The CBIC's guidance signals an awareness of the need for flexibility in addressing the diverse scenarios arising from the secondment of overseas employees