INTERPRETATION OF CENTRAL GOODS AND SERVICES TAX (CGST) ACT (PART-2)(Meaning of Important Terms)

[Dr. Sanjiv Agarwal]

This part of the series contains meanings of certain terms covered in Section 2 of the CGST Act, 2017.  These are actionable claim, address of delivery, address on record, adjudicating authority and agent.

Definitions (Section 2)

Section (2) of the CGST Act provides for 119 definitions of various terms and expressions used in the Act. It has been provided that words or expressions which are not defined in CGST Act but defined in other Acts, viz, IGST Act, UTGST Act and Goods and Services Tax (Compensation to States) Act shall have same meanings as defined in those Acts. It may be noted that Section (2) does not have reference to SGST Act.

In case of the State of Jammu & Kashmir, it provides that any reference to a law in CGST Act which is not in force in the State of Jammu & Kashmir shall have reference to any corresponding law which is in force in the State of Jammu & Kashmir.

Actionable Claim [Section 2(1)]

Actionable claim will have the meaning assigned to it in Transfer of Property Act, 1882. According to section 3 of the Transfer of Property Act, 1882, actionable claims include the following types of claims :-

• A claim to unsecured debts
• A claim to beneficial interest in movable property
• A claim to any debt

Accordingly, the claims like claim for arrear rent, option offered to repurchase the property once sold, unsecured debts, insurance money, right  to claim and recover etc. will be considered as actionable claim.

Actionable claims have been considered as goods in this Act. Thus any dealing in actionable claim would be considered as supply of goods and would be taxable under this Act.

The key elements for any claim to be called 'Actionable Claim' are :

• It is any type of debt other than a debt secured by mortgage of immovable property or by hypothecation or pledge.
• Any beneficial interest in movable property not in possession of claimant, either actual or constructive.
• Civil courts should recognize such claim as worthy of affording grounds for relief.
• Such claims or interest could be existing, accruing, conditional or contingent.
• Actionable claims can be assigned
• Actionable claims can be enforced in a court of law.

Examples of claims which are 'actionable claims':

• Claim for arrear rent.
• Claim for rent to fall due in future.
• An option offered to repurchase the property once sold.
• Benefit of a contract giving option to purchase the land.
• Contract for purchase of goods is endorsed by the purchaser, by writing on the back of the contract under his signature, that he has sold all his rights and interest in the goods purchased under the said contract to a certain person who is named and properly identified in such endorsement.
• Unsecured debts
• Wining from lotteries
• Right to claim and recover
• Insurance money
• Claim for unpaid dower (in case of muslim women)

According to definition of 'goods' in section 2(32), actionable claims are considered as goods.

Address of delivery [Section 2(2)]

GST is based on destination based principle. Address of delivery helps in determination the destination of supply of goods and / or services.

'Address of delivery' means the address of the recipient of goods and/or services indicated on the tax invoice issued by a taxable person for delivery of such goods and/or services.

Accordingly, following points are to be noted for 'address of delivery' –

1. It is an address of the recipient of goods or address of the recipient of services.
2. It is that address which is indicated on the tax invoice.
3. Taxable person should have issued such tax invoice for delivery of goods or services.

Address means the particulars of the place where someone lives or an organization is situated. For individual, it may be permanent address or current residing address. For persons other than individual, it may or may not be the registered address which is mentioned at the time of registration under any law for the time being in force.

Address of delivery is one of the important factors which help in determination of nature of transaction like inter-state or intra-state supply.

Address on record [Section 2(3)]

It is the address of recipient as is available in the records of supplier Location of recipient of supply of goods and / or services is one of the factors to be considered for the purpose of determination of nature of transaction like inter-state or intra state.

This factor is equally relevant irrespective of whether the recipient is registered taxable person or unregistered taxable person.

Address on record would imply address as recorded in the records of supplier of goods or services. Such address may therefore, be different from the registered address or address of head office, factory etc. Even the address on record may be different from that in the records of the Department.

It may be noted that ‘address of delivery’ represent the place where goods and/ or services are to be delivered and/or provided where as ‘address on record’ implies address as per records of the supplier of goods / services.  Normally, this address is used for the billing purpose. Both may be different from the registered address of recipient of supply.

Adjudicating authority [Section 2(4)]

Adjudicating authority refers to any authority, appointed or authorised to pass any order or decision under this Act, but does not include following:

• the Central Board of Excise and Customs,
• any Revisional Authority,
• Authority for Advance Ruling,
• Appellate Authority for Advance Ruling,
• Appellate Authority, and
• Appellate Tribunal.

The adjudicating authority's decisions or orders shall be subject to revision / appeal.

Agent [Section 2(5)]

Agent is a person who acts on behalf of somebody (i.e., principal).  An agent would include any of the following :

• factor
• broker
• commission agent
• arhatia
• del credere agent
• auctioneer
• mercantile agent , or
• any such other person by whatever name called

Under the agency principles, it is the principal who is responsible for the actions of agent and agent has no capacity of his own.

Under the GST law, an agent has been considered as a separate taxable person and has been made liable for registration under the Act. More so the benefit of threshold limit will not be available to an agent. Thus, an agent even though having aggregate annual turnover of less than threshold limit of INR 20 lakhs / 10 lakhs, as the case may be, would be liable for registration.

The transactions between the principal and agent would be considered as transactions of supply of goods and / or services. Even though there may be no consideration in such transactions, still it would be liable for taxation as covered by provisions of Schedule I of CGST law.

(To be continued.....)