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2022 (1) TMI 186 - AAR - GSTLevy of GST - recoveries made from the employees towards providing canteen facility at subsidized rates in the factory and office - recoveries made from the employees towards providing bus transportation facility - Exemption under N/N. 12/2017 Central Tax (Rate) - recoveries made from the employees on account of not serving the full notice period. Whether the GST would be payable on recoveries made from the employees towards providing canteen facility at subsidized rates in the factory and office? - HELD THAT - The applicant is not supplying any canteen service to its employees in the instant case. Further, the said canteen facility services are also not the output service of the applicant since it is not in the business of providing canteen service. Rather, we find that, this canteen facility is provided to employees by the third party vendors and not by the applicant. Therefore, in the subject case, the applicant is not providing any canteen facility to its employees, in fact the applicant is a receiver of such services - Since the provision of canteen facility by the applicant to its employees is not a transaction made in the course or furtherance of business, and since in terms of Section 7 of the CGST Act, 2017, for a transaction to qualify as supply, it should essentially be made in the course or furtherance of business, it is found that the canteen services provided by the applicant to its employees cannot be considered as a supply under the relevant provisions of the CGST Act, 2017 and therefore the applicant is not liable to pay GST on the recoveries made from the employees towards providing canteen facility at subsidized rates. Whether the GST would be payable on the recoveries made from the employees towards providing bus transportation facility? If yes, whether the Applicant is exempted under Notification No. 12/2017 Central Tax (Rate)? - HELD THAT - The applicant, arranging bus transportation facility for their employees is definitely not an activity which is incidental or ancillary to the activity of developing, manufacturing and marketing of pharmaceutical products, nor can it be called an activity done in the course of or in furtherance of developing, manufacturing and marketing of pharmaceutical products as it is not integrally connected to the business in such a way that without this, the business will not function. Hence, it is held that, GST would not be payable on the recoveries made from the employees towards providing bus transportation facility. Whether the GST would be payable on the notice pay recoveries made from the employees on account of not serving the full notice period? - HELD THAT - The recovery of notice pay from dues of employee / payment of notice pay by the employee who could not serve the notice for the period as per contractual agreement / appointment letter does not amount to supply and therefore as per Section 7 (1A) of the CGST Act, 2017, the provisions of Schedule II does not come into play - the notice pay recovered by the applicant from its employees is not liable to GST.
Issues Involved:
1. GST applicability on recoveries made from employees for providing canteen facilities at subsidized rates. 2. GST applicability on recoveries made from employees for providing bus transportation facilities and applicability of exemption under Notification No. 12/2017 Central Tax (Rate). 3. GST applicability on notice pay recoveries from employees for not serving the full notice period. Issue-wise Detailed Analysis: 1. GST on Canteen Facility Recoveries: - The applicant, a pharmaceutical company, provides canteen facilities to employees as per HR policy, engaging third-party service providers who charge GST. - The applicant contends that these recoveries do not qualify as "supply" under Section 7(1) of the CGST Act, as the canteen facility is not related to their business of manufacturing pharmaceutical products. - The ruling held that the provision of canteen facilities is mandated by the Factories Act and is not in furtherance of the applicant's business. The applicant is not supplying canteen services but is a receiver of such services from third-party vendors. - Since the canteen facility is not a business activity of the applicant, it does not qualify as "supply" under the CGST Act. Therefore, GST is not payable on these recoveries. 2. GST on Bus Transportation Facility Recoveries: - The applicant provides bus transportation facilities to employees using third-party vendors and recovers a subsidized amount from employees. - The applicant argues that this facility is not in furtherance of their business and should not be considered as "supply" under the CGST Act. - The ruling referenced similar cases (e.g., Tata Motors Limited and North Shore Technologies Private Limited) where it was held that such facilities are not integrally connected to the business and do not qualify as "supply." - It was concluded that arranging bus transportation for employees is not an activity in furtherance of the applicant's business. Hence, GST is not payable on these recoveries. 3. GST on Notice Pay Recoveries: - The applicant recovers notice pay from employees who do not serve the full notice period as per the employment agreement. - The applicant argues that notice pay recovery is not a "supply" under the CGST Act and should not attract GST, citing various judicial precedents. - The ruling referenced the Madhya Pradesh Appellate Authority for Advance Ruling and the Madras High Court's decision in GE T&D India Ltd, which held that notice pay recovery is not a service provided by the employer but compensation for the employee's sudden exit. - It was concluded that notice pay recovery does not qualify as "supply" under the CGST Act. Therefore, GST is not payable on these recoveries. Order: - GST is not payable on recoveries made from employees for providing canteen facilities at subsidized rates. - GST is not payable on recoveries made from employees for providing bus transportation facilities. - GST is not payable on notice pay recoveries from employees for not serving the full notice period.
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