We had the learning presentation by CA Rajesh Kumar TR last week. Readers are advised to keep the bare act with them while reading the series of finer issues which would be discussed. It is very important that when professionals advice on compliances or do audit then they need to be conservative. In case of dispute then the observations in this article would be useful.
The insights as understood were as under:
1. Need to understand the 3 baskets of levy Vs assessment Vs collection as separate activities. Ex. Alcoholic liquor excluded- there fore no procedures like eway bill etc applicable to that commodity. Sec 15 value only valid. Values beyond section may need examination – ex. 2/3 value of construction for sale of under construction property.
2. States cannot come up with their own rate.
3. u/s 9(3) only recipient liable- other persons not liable. Only payment shifted. Director receiving salary – not liable as RCM. GTA explanation says person who pays is treated as recipient- May not be valid- Just like Ocean freight as decided by Gujrat High Court.
4. Different laws like railway act, service tax definition pre and post negative list- only persuasive value unless exact cut paste.
5. u/s 9 (4) URS for 3 months in 2017 may not be legally valid as the section was substituted- meant to cure the problem created. Therefore it means the provision was never there.
6. u/s 9(5) Unlike RCM it is applicable to the E Com operator as if he is supplier. 2 different compliance – by supplier & ECO.
7. u/s 7- supply is understood as anything= everything; word includes can be said to be exhaustive in normal course. However under GST it can be said to be “means”
8. Whether service can cover transaction in immovable property- would it be a State subject? Development rights by landlord classifiable under 9972- exempted under not 12/17. Dev rights not in real estate services. Exemption by itself cannot create a levy. Therefore possibly no tax – levy fails.
9. TDR for giving up land not same as landlord JDA. Could be liable.
10. Government charging fees- whether can be taxed under RCM? Royalty issue before SC.