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GST officials seek directors’remuneration information

GST officials seek directors’remuneration information

Goods and services tax authorities in some states have sent notices to companies seeking information about the remuneration of directors and the tax paid on them.

This comes as only a few companies have started operations following the staggered opening up of the nationwide lockdown to counter the Covid-19 outbreak.

The inquiries come on the heels of conflicting orders passed by the Authority of Advance Ruling in two states on the applicability of GST on the remuneration of directors. The AAR Rajasthan said director remuneration is under the ambit of GST, while the AAR Karnataka ruled it was not.

“The conflicting advance ruling judgments on GST applicability on director’s remuneration has caused doubt in the minds of authorities at the field level, potentially causing unnecessary litigation,” said Bipin Sapra, a partner at .

The tax authorities in states including Chhattisgarh, Uttar Pradesh and Maharashtra have sent out the notices seeking information, said people familiar with the matter.

In some cases, companies have been sent a memorandum, asking them to provide documents detailing the GST paid on the remuneration of directors since July 1, 2017, along with the amounts given to the directors. Companies have been warned of action against them if the information isn’t furnished within a week.

ET has seen a copy of the memorandum sent out on May 12.

The issue has significant ramifications for companies, especially in the services sector, where they need individual registration in each state.

“Even though AAR ruling applies only to applicants who seek clarity on interpretation of laws, still authorities in different tax jurisdictions are taking cognisance of this ruling and issuing notices,” said Rajat Mohan, a senior partner at Associates.

Experts have sought expeditious clarification on the issue. If the GST Council issues a clarification, it will put the matter to rest, Mohan added.

Source: Economic-Times

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Advance ruling: A useful tool for achieving tax certainty

Advance ruling: A useful tool for achieving tax certainty

Advance ruling can be obtained in respect of registration requirement, classification, determination of time and value of supply, admissibility of input tax credit and determination of the tax liability. Taxpayers need to exercise this option with caution, compared with other modes of obtaining certainty and dispute resolution, in view of the recent trend of adverse rulings.

India embarked on its journey of ‘One Nation One Tax’ with the introduction of the goods and services tax (GST) in July 2017. The landmark legislation, which has completed two years, is the biggest tax reform in India after independence. The GST Act subsumed erstwhile indirect taxes such as excise duty, value-added tax (VAT), service tax, etc.

In order to ensure uniformity in central and state GST laws, the GST Act promulgated setting up of a GST Council to recommend changes in the law for consistent implementation by the central and the state governments.

Being a new legislation, the GST law posed challenges for both the taxpayers as well as the tax practitioners in the form of interpretation of law, classification of goods and services, admissibility of input tax credit, applicability of exemption notification, etc.

In order to ensure faster disposal of these issues, the GST law borrowed one of the aspects from the erstwhile indirect tax legislation, ie the mechanism of obtaining an advance ruling. An advance ruling helps a taxpayer to obtain the required clarity on taxability of a transaction in advance thereby enabling it to avoid future disputes.

Under the GST law, an advance ruling can be obtained with respect to registration requirement, classification, determination of time and value of supply, admissibility of input tax credit of tax paid and determination of the liability to pay tax on any goods or services or both.

The Authority for Advance Ruling (AAR) has been constituted in each state/Union territory under the GST regime. An applicant seeking an advance ruling is required to file an application before the state/Union territory AAR providing required details such as the facts of the case, issues on which advance ruling is sought along with the contentions in relation thereto. The AAR is required to give its ruling within 90 days of the receipt of the application.

There is also an appellate forum created in each state in the form of Appellate Authority for Advance Ruling (AAAR). Any applicant aggrieved by the AAR’s ruling can appeal before the AAAR. The AAAR is also required to pass its order within a period of 90 days of the filing of the appeal.

The advance ruling process has gained considerable traction under GST with close to 1,000 applications made to the advance ruling authorities by taxpayers. In a short span of two years, the AAR’s have passed rulings on various critical tax issues like tax treatment on transfer of business as a ‘going concern’, provision of back office support services by Indian entity to overseas entity, treatment of interest free security deposits, etc. One should note that while the ruling passed by the AAR and AAAR are binding only on the applicant and the jurisdictional authorities, the same carries persuasive value for others.

Thus, it can be seen that the aim of the advance rulings framework is to provide certainty and clarity to the taxpayer with respect to its obligations under the GST Act in a time-bound manner.

However, this does not mean that advance rulings are free from imperfection. One key limitation of the AAR/AAAR is that there have been numerous instances of divergent rulings being passed by different state AARs on issues such as taxability of cross charges for common administrative and IT support services by employees of one unit to other units, differential tax rates in case of solar energy sector etc. Further, there have been instances where decisions of the authorities are contrary to the position settled under the erstwhile indirect tax regime.

The GST Council, in order to address these limitation, had recommended formation of a centralized appellate authority. The Union cabinet has recently approved the formation of a national bench of the GST Appellate Tribunal (GSTAT) at New Delhi to address tax disputes due to contradictory rulings. However, the procedural guidelines of the GSTAT are yet to be issued. Thus, one may reasonably infer that the government is actively trying to address the current limitation in the existing advance ruling mechanism.

To conclude, a taxpayer should tread the path of obtaining an advance ruling with caution. The taxpayer should not only be well versed with the available jurisprudence under the erstwhile indirect tax regime but also be cognizant of the rulings passed by other AAR/AAAR, if any, on similar fact pattern. Further, it has generally been observed that cases where taxpayers have maintained appropriate documentation to substantiate their claims stand a better chance of obtaining a favourable ruling from the AAR.

While AAR/AAAR is a good mechanism for the tax payers to address their concerns, the recent trend of adverse / different rulings should be kept in mind before a tax payer opts for such a ruling. It is anticipated that once the GSTAT is fully operational, some of these concerns would get addressed. Till then, tax payers should act with caution and take this dispute resolution mechanism with a pinch of salt.

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Source: LiveMint
Advance Authority for Rulings in demand to clear doubts on GST

Advance Authority for Rulings in demand to clear doubts on GST

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A few senior tax officials and corporates have requested the government to start Advance Authority for Rulings as early as possible to clear doubts on goods and services tax (GST), as this will prevent companies and associations from approaching courts for clarity. Advance Authority for Rulings (AAR) is a forum companies customarily approach to get clarity on certain tax issues to determine their future liability. Absence of such an authority is leading to many companies and associations dragging the GST Council and government to court, say industry trackers.

At the last count, about 10 writ petitions were filed, challenging some aspect of GST. About half a dozen more writs would be filed in the next fortnight alone. The trigger may have been some prominent companies, associations and multinational banks having either moved court or with plans to do so. ET had, on Sept 29, reported that Singapore-based DBS Bank had dragged the Indian government and GST Council to the Delhi High Court after it was asked to pay integrated goods and services tax (IGST) on banking services provided to its head office in Singapore.

Some other writ petitions include the one filed by Rajasthan consultants for modification of compliance requirements, not charging interest, penalty, the retrospective effect to late fee waivers, composition window and incomplete utility forms under the GST framework.


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“The need for GST AAR to start functioning at the earliest is paramount as several businesses would like to have clarity on matters of classification, place of supply and input tax credit, among others,” said MS Mani, partner, Deloitte India. “Delays would lead to businesses taking a tax position which could be subsequently challenged by the tax authorities, leading to avoidable litigation. The need for AAR is more during the initial period of GST when businesses are grappling with the challenges posed by a new legislation,” said Mani.

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However, a senior tax official told ET, “The government is sensitive towards some issues companies are facing, but instead of filing cases in courts, representations to the government could be a better solution. No clarification could be issued in situations where companies and institutions have approached the court unless it is directed to us by these courts.” He also added that the government will approach the Supreme Court in cases where the position taken by some companies or associations goes against the “very fabric of GST”.

In fact, Delhi High Court had questioned the government after a writ petition filed by an individual questioned why the AAR was not yet set up. In its reply on September 15, the government said that an advance ruling would be made available on the GST portal by January 15, 2018. According to people in the know, the government is taking time mainly due to two reasons.

“Selecting people with the right profile to head the advance ruling body is very crucial. Also, the IT integration part is taking some time.” However, Delhi High Court has asked the government to set up an offline AAR facility by October 20.

A lawyer advising a multinational to ET, “Most multinationals want to avoid litigation, but there are a lot of issues in GST, and there is no clarity. How can one have a clear tax strategy if they don’t know what is the government’s position.” The government had also told its tax officers in September to defend GST.


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Source:Economic Times