Friends!
In
GST, event for levy of tax is 'supply of goods or services or both' and not
making of tax invoice or receipt of payment. Making of an agreement of supply
of goods does not amount to supply of goods. Word "supply" denotes
completed supply.
In
clause (12A) of article 366 of the Indian Constitution, expression "goods
and services tax" has been defined as follows:
‘(12A) “goods and services tax” means any tax on supply of goods,
or services or both except taxes on the supply of the alcoholic liquor for
human consumption;’;
In clauses 12
and (26A), words, "goods" and
"services" have been defined as follows:
(12) “goods” includes all materials, commodities, and articles;
‘(26A) “Services” means anything other than goods;
We
are concerned here with the meaning of the word "supply" used in the
expression "supply of goods or services or both". Whether an
agreement, made for supply of goods, amounts to supply of goods, is an
important question. Where for supply of goods by one person to another, both
persons enter into an agreement or contract of supply of goods, the contract of
supply starts with making of the agreement. But by making only contract of
supply, it cannot be concluded that event of supply of goods has taken place. Where
a contract of supply of goods includes a condition of approval of goods by the
recipient of goods, supply takes place at the moment at which recipient
signifies its approval. If tax is leviable on the event of supply of goods, it
cannot be levied before the event has taken place. In case of tax on sale of goods, the
Honorable Supreme Court has held that "sale" is to be understood a
completed sale.
In
the business world, most of the contracts of supply of goods are contracts of
sale. For all such cases, contract of "supply of goods" and contract
of "sale of goods" are one and the same. In such cases, moment at
which event of sale happens also becomes the moment at which supply of goods
takes place. Event of entering into an agreement may be thought as an event
initiating contract of supply of goods but cannot be considered happening of
event of supply of goods. Similarly, event of payment or receipt of advance
payment cannot be treated as happening of event of supply of goods. Under the
contract of supply of goods, where contract of supply of goods is a contract of
sale, event of supply cannot be treated a completed event unless control and
possession over goods is made available to the recipient or his nominee.
Section
7 of the Central Goods and Services Tax Act, 2017 (hereinafter referred to as
the Central GST Act) defines scope of word "supply". Clause (a) of
sub-section (1) of this section runs as follows:
"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;"
Here
we see that a sale, transfer, barter, exchange, licence, rental, lease or
disposal "agreed to be made for a consideration" has also been
treated a supply of goods or services or both. In my opinion, in view of the
discussion above, such provision is invalid also in view of the definition of
the term "goods and services tax" provided in clause "26A"
of article 366 of the Constitution.
Section
12 of the Central GST Act, defines time of supply of goods for the purpose of
payment of tax. Sub-sections (1) and (2) of this section run as under:
"12. (1) The liability to
pay tax on goods shall arise at the time of supply, as determined in accordance
with the provisions of this section.
(2) The time of supply of goods shall be the earlier of the
following dates, namely:—
(a) the date of issue of invoice by the
supplier or the last date on which he is required, under sub-section (1) of section 31, to
issue the invoice with respect to the supply; or
(b) the date on which the supplier
receives the payment with respect to the supply:
Provided
that where the supplier of taxable goods receives an amount up to one thousand
rupees in excess of the amount indicated in the tax invoice, the time of supply
to the extent of such excess amount shall, at the option of the said supplier,
be the date of issue of invoice in respect of such excess amount.
Explanation 1.––For the purposes of clauses (a) and (b), “supply” shall be
deemed to have been made to the extent it is covered by the invoice or, as the
case may be, the payment.
Explanation 2.––For the purposes
of clause (b), “the date on which
the supplier receives the payment” shall be the date on which the payment is
entered in his books of account or the date on which the payment is credited to
his bank account, whichever is earlier."
These
provisions suggest that where payment is received or invoice is issued even
before supply of goods, event will be considered to have taken place. This
provision is creating lot of difficulties to traders and entrepreneurs.
Receipt
voucher details prescribed in the CGST Rules, also requires details of goods,
their value, amount of tax, etc. There may be cases, in which value of goods
may depend on circumstances prevailing on the day on which supply is made. In
such circumstances, how the value of goods may be mentioned on the receipt
voucher.
In
export cases, exporters are being required to furnish 'Letter of Undertaking'
before goods can be exported. Where an
exporter fails to export goods within three months of making invoice, he has
been required to make payment of Integrated Tax within fifteen days along with
payment of interest at a rate of 18 percent per annum for the period commencing
on the date of the invoice till the date on which payment is made. Important
question is that whether preparation of invoice amounts to supply of goods.
I
fail to understand that if base or footing (नीव) of the building is slant or zig zag, how
the wall of building may be vertical.
Disclaimer: Views expressed here are
my own views. Readers are advised to obtain opinion of some expert on the
subject before acting upon my views.
