Clarification on certain issues (sale by government departments to unregistered person; leviability of penalty under section 73(11) of the WBGST Act; rate of tax in case of debit notes / credit notes issued under section 142(2) of the WBGST Act; applicability of notification No. 1344-F.T.; valuation methodology in case of TCS under Income Tax Act and definition of owner of goods) related to GST. - GST - States - 54/2018

GOVERNMENT OF WEST BENGAL DIRECTORATE OF COMMERCIAL TAXES 14, BELIAGHATA ROAD, KOLKATA-700015 TRADE CIRCULAR No. 54/2018 (Circular No. 76/50/2018-GST) DATED: 31.12.2018 Subject: Clarification on certain issues (sale by government departments to unregistered person; leviability of penalty under section 73(11) of the WBGST Act; rate of tax in case of debit notes / credit notes issued under section 142(2) of the WBGST Act; applicability of notification No. 1344-F.T.; valuation methodology in case of TCS under Income Tax Act and definition of owner of goods) related to GST. Various representations have been received seeking clarification on certain issues under the GST laws. In order to clarify these issues and to ensure uniformity of implementation across field formations, the Commissioner, in exercise of his powers conferred under section 168 (1) of the West Bengal Goods and Services Tax Act, 2017 (hereinafter referred to as the WBGST Act ) hereby clarifies the issues as below: Sl.No Issue Clarification 1. Whether the supply of used vehicles, seized and confiscated goods, old and used goods, waste and scrap by Government departments are taxable under GST? 1. It may be noted that intra-State and inter-State supply of used vehicles, seized and confiscated goods, old and used goods, waste and scrap made by the Central Government, State Government, Union territory or a local authority is a taxable supply under GST. 2. Vide notification No. 1800-F.T. and notification No. 37/2017- Integrated Tax (Rate) both dated 13.10.2017, it has been notified that intra-State and inter-State supply respectively of used vehicles, seized and confiscated goods, old and used goods, waste and scrap by the Central Government, State Government, Union territory or a local authority to any registered person, would be subject to GST on reverse charge basis as per which tax is payable by the recipient of such supplies. 3. A doubt has arisen about taxability of intra-State and inter-State supply of used vehicles, seized and confiscated goods, old and used goods, waste and scrap made by the Central Government, State Government, Union territory or a local authority to an unregistered person. 4. It was noted that such supply to an unregistered person is also a taxable supply under GST but is not covered under notification No1800-F.T. and notification No. 37/2017- Integrated Tax (Rate) both dated 13.10.2017. 5. In this regard, it is clarified that the respective Government departments (i.e. Central Government, State Government, Union territory or a local authority) shall be liable to get registered and pay GST on intra-State and inter-State supply of used vehicles, seized and confiscated goods, old and used goods, waste and scrap made by them to an unregistered person subject to the provisions of sections 22 and 24 of the WBGST Act. 2. Whether penalty in accordance with section 73 (11) of the WBGST Act should be levied in cases where the return in FORM GSTR-3B has been filed after the due date of filing such return? 1. As per the provisions of section 73(11) of the WBGST Act, penalty is payable in case self-assessed tax or any amount collected as tax has not been paid within a period of thirty days from the due date of payment of such tax. 2. It may be noted that a show cause notice (SCN for short) is required to be issued to a person where it appears to the proper officer that any tax has not been paid or short paid or erroneously refunded or where input tax credit has been wrongly availed or utilised for any reason under the provisions of section 73(1) of the WBGST Act. The provisions of section 73(11) of the WBGST Act can be invoked only when the provisions of section 73 are invoked. 3. The provisions of section 73 of the WBGST Act are generally not invoked in case of delayed filing of the return in FORM GSTR-3B because tax alongwith applicable interest has already been paid but after the due date for payment of such tax. It is accordingly clarified that penalty under the provisions of section 73(11) of the WBGST Act is not payable in such cases. It is further clarified that since the tax has been paid late in contravention of the provisions of the WBGST Act, a general penalty under section 125 of the WBGST Act may be imposed after following the due process of law. 3. In case a debit note is to be issued under section 142(2)(a) of the WBGST Act or a credit note under section 142(2)(b) of the WBGST Act, what will be the tax rate applicable the rate in the pre-GST regime or the rate applicable under GST? 1. It may be noted that as per the provisions of section 142(2) of the WBGST Act, in case of revision of prices of any goods or services or both on or after the appointed day (i.e., 01.07.2017), a supplementary invoice or debit/credit note may be issued which shall be deemed to have been issued in respect of an outward supply made under the WBGST Act. 2. It is accordingly clarified that in case of revision of prices, after the appointed date, of any goods or services supplied before the appointed day thereby requiring issuance of any supplementary invoice, debit note or credit note, the rate as per the provisions of the GST Acts (both CGST and SGST or IGST) would be applicable. 4. Applicability of the provisions of section 51 of the WBGST Act (TDS) in the context of notification No. 1344-F.T. dated 13.09.2018. 1. A doubt has arisen about the applicability of long line mentioned in clause (a) of notification No. 1344-F.T. dated 13.09.2018. 2. It is clarified that the long line written in clause (a) in notification No. 1344-F.T. dated 13.09.2018 is applicable to both the items (i) and (ii) of clause (a) of the said notification. Thus, an authority or a board or any other body whether set up by an Act of Parliament or a State Legislature or established by any Government with fifty-one per cent. or more participation by way of equity or control, to carry out any function would only be liable to deduct tax at source. 3. In other words, the provisions of section 51 of the WBGST Act are applicable only to such authority or a board or any other body set up by an Act of parliament or a State legislature or established by any Government in which fifty one per cent. or more participation by way of equity or control is with the Government. 5. What is the correct valuation methodology for ascertainment of GST on Tax collected at source (TCS) under the provisions of the Income Tax Act, 1961? 1. Section 15(2) of WBGST Act specifies that the value of supply shall include any taxes, duties cesses, fees and charges levied under any law for the time being in force other than this Act, the CGST Act, the UTGST Act and the GST (Compensation to States) Act, if charged separately by the supplier. 2. It is clarified that as per the above provisions, taxable value for the purposes of GST shall include the TCS amount collected under the provisions of the Income Tax Act since the value to be paid to the supplier by the buyer is inclusive of the said TCS. 6. Who will be considered as the owner of the goods for the purposes of section 129(1) of the WBGST Act? It is hereby clarified that if the invoice or any other specified document is accompanying the consignment of goods, then either the consignor or the consignee should be deemed to be the owner. If the invoice or any other specified document is not accompanying the consignment of goods, then in such cases, the proper officer should determine who should be declared as the owner of the goods. 3. Difficulty if any, in the implementation of this Circular may be brought to the notice of the Commissioner. Sd/- (Smaraki Mahapatra) Commissioner, State Tax, West Bengal Memo. 542 CT/PRO 3C/PRO/2018 Date: 31.12.2018