A detailed summery of November 2023 GST updates

Place of supply in case of supply of service of transportation of goods

1. Supply of service of transportation of goods, other than by way of mail and courier, in cases where location of supplier of services or location of recipient of services is outside India.
2. Supply of service of transportation of goods by mail or courier

Place of Supply shall be the destination of such goods i.e Sec 13(9) has been omitted and accordingly default rule will be applicable  as follows:

1. Where location of recipient of services is available, the place of supply of such services shall be the location of recipient of services
2. Where location of recipient of services is not available in the ordinary course of business, the place of supply shall be the location of supplier of services.

Place of supply in case of supply of services in respect of advertising sector

1. Supply (sale) of space or supply of rights to use the space on the hoarding/ structure (immovable property) belonging to vendor to the client/advertising company for display of their advertisement on the said hoarding/ structure
2. Place of supply where the vendor himself owns the structure or takes it on rent or rights to use from another person and is responsible for display of the advertisement of the advertisement company at the said location

1. Place of supply in such case shall be location where such hoarding/ structure is located
2. Place of Supply shall be determined in terms of section 12(2) of IGST Act.

Place of supply in case of supply of the “co-location services”

1. Supply of colocation services where cannot be considered as the service of renting immovable property
2. However, in cases where the agreement between the supplier and the recipient is restricted to providing physical space on rent along with basic infrastructure, without components of Hosting and IT Infrastructure Provisioning services and the further responsibility of upkeep, running, monitoring and surveillance, etc. of the servers and related hardware is of recipient of services only

1. Place of supply of the colocation services shall be determined by the default provision under section 12(2) of the IGST Act i.e., location of recipient of co-location service
2. Supply of services shall be considered as the supply of the service of renting of immovable property. Accordingly, the place of supply of these services shall be determined by the provisions of section 12(3)(a) of the IGST Act which is the location where the immovable property is located.

• A. Activity of providing personal guarantee by the Director of a company to the bank/ financial institutions for sanctioning of credit facilities to the said company without any consideration

As per Sec 7(1)(c) r/w Sl. No. 2 of Sch I, treated as a supply of service, even when made without consideration the taxable value of such supply of service shall be the open market value of such supply.

However, when no consideration can be paid for the said transaction by the company to the director in any form, directly or indirectly, as per RBI mandate, there is no question of such supply/ transaction having any open market value.

Further, in cases, where the director, who had provided the guarantee, is no longer connected with the management but continuance of his guarantee is considered essential the taxable value of such supply of service shall be the remuneration/ consideration provided to such a person/ guarantor by the company, directly or indirectly.

• B. Activity   of   providing corporate guarantee by a person on behalf of another related person, or by the holding company for sanction of credit facilities to its subsidiary company, to the bank/ financial institutions, even when made without any consideration

Treated as a supply of service by holding company to the subsidiary company, being a related person, as per the provisions of Schedule I of CGST Act.

The taxable value will be determined as per rule 28 of CGST Rules.

• A. Whether “same line of business” in case of passenger transport service and renting of motor vehicles includes leasing of motor vehicles without operators

• B. Whether GST is applicable on reimbursement of electricity charges received by real estate companies, malls, airport operators etc. from their lessees/occupants

Whenever electricity is being supplied bundled with renting of immovable property and/or maintenance of premises, as the case may be, it forms a part of composite supply and shall be taxed accordingly. The principal supply is renting of immovable property and/or maintenance of premise, as the case may be, and the supply of electricity is an ancillary supply as the case may be.

Even if electricity is billed separately, the supplies will constitute a composite supply and therefore, the rate of the principal supply shall be applicable.

However, where the electricity is supplied by the Real Estate Owners, Resident Welfare Associations (RWAs), Real Estate Developers etc., as a pure agent, it will not form part of the value of their supply.  Further, where they charge for electricity on actual basis that is, they charge the same amount for electricity from their lessees or occupants as charged by the State Electricity Boards or DISCOMs from them, they will be deemed to be acting as pure agent for this supply.

• C. Whether job work for processing of “Barley” into “Malted Barley” attracts GST@ 5% as applicable to “job work in relation to food and food products” or 18% as applicable on “job work in relation to manufacture of alcoholic liquor for human consumption”

Malt being a food product, can be directly consumed as part of food preparations or can be used as an ingredient in food products and also used for manufacture of beer and alcoholic liquor for human consumption. However, irrespective of end-use, conversion of barley into malt amounts to job work in relation to food products.

Hence, it has been clarified that job work services in relation to manufacture of malt are covered by the entry at Sl. No. 26 (i) (f) which covers “job work in relation to all food and food products falling under chapters 1 to 22 of the customs tariff” irrespective of the end use of that malt and attracts 5% GST.

• D. Whether District Mineral Foundations Trusts (DMFTs) set up by the State Governments are Governmental Authorities and thus eligible for the same exemptions from GST as available to any other Governmental Authority

Activities provided by the DMFTs are similar to activities that are enlisted in Eleventh and Twelfth Schedule of the Constitution.  The ultimate users of the various schemes under DMF are individuals, families, women and children, farmers/producer groups, SHGs of the mining-affected areas etc.  The services/supplies out of DMF fund are provided free of charge and no consideration is realized from the beneficiaries by DMF against such services.

Accordingly, it is clarified that DMFT set up by the State Governments are Governmental Authorities and thus eligible for the same exemptions from GST as available to any other Governmental Authority.

• E. Whether supply of pure services and composite supplies by way of horticulture/horticulture works (where the value of goods constitutes not more than 25% of the total value of supply) made to CPWD are eligible for exemption from GST under Sr. No. 3 and 3A of Notification no 12/2017-CTR dated 28.06.2017

Public parks in government residential colonies, government offices and other public areas are developed and maintained by CPWD.  Maintenance of community assets, urban forestry, protection of the environment and promotion of ecological aspects are functions entrusted to Panchayats and Municipalities under Article 243G and 243W read with Sr. No. 29 of 11th Schedule and Sr. No. 8 of 12th Schedule of the Constitution.

Sr. No. 3 and 3A of Notification No. 12/2017-CTR exempt pure services and composite supply of goods and services in which value of goods does not constitute more than 25%, that are provided to the Central Government, State Government or Union territory or local authority by way of any activity in relation to any function entrusted to a Panchayat under article 243G of the Constitution or in relation to any function entrusted to a Municipality under article 243W of the Constitution.

Accordingly, it has been clarified that supply of pure services and composite supplies by way of horticulture/horticulture works (where the value of goods constitutes not more than 25% of the total value of supply) made to CPWD are eligible for exemption from GST under Sr. No. 3 and 3A of Notification no 12/2017-CT(R) dated 28.06.2017.