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TMI BlogCritical study of provisions of CENTRAL GOODS AND SERVICES TAX ACT, 2017–( in (short CGST) definitions from clause 76 to clause 120 of section 2. – Fourth articleX X X X Extracts X X X X X X X X Extracts X X X X ..... Critical study of provisions of CENTRAL GOODS AND SERVICES TAX ACT, 2017–( in (short CGST) definitions from clause 76 to clause 120 of section 2. – Fourth article - By: - DEV KUMAR KOTHARI - Goods and Services Tax - GST - Dated:- 16-7-2022 - - Earlier article in series can be easily found with search facility on this website. In this series of articles author has made attempt for critical study of Chapter 1 of CGST Act which consists preamble and Section 1 and 2 . In this article definition clauses in section 2 from 76 to 120 are considered. Definitions are taken as they stand now. Many amendments have been made after initial coming into force of provisions. Therefore, when dealing with matters of earlier period , particular care should be taken to ensure that law as prevailing at relevant time is to be considered. Section 2 is definition clauses. Broadly, we find four types of definitions in CGST. In the table below, in left column provisions are reproduced with highlights and in right column some observations and remarks are given by the author for critical aspects. Statutory Provisions CENTRAL GOODS AND SERVICES TAX ACT, 2017 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... From provisions with highlights for catch words, critical words having special significance. { }are used when clause is divided in parts which are long. Observations / remarks these are in addition to highlights, if so considered by author. So please see highlights. Definitions. 2. In this Act, unless the context otherwise requires, In definition clauses we find use of words means (at 102 places), includes ( at 18 places) shall have ( at eight places) is used when definition from any other enactment is adopted. When opening word means is used, it must be definite meaning and not subject to context. When there is adoption of definition in another enactment, the scope of that expression shall be as used in that enactment and shall also be changed if there is change in that enactment. In some definitions other provisions of CGST itself are adopted/ referred for meaning. (76) motor vehicle shall have the same meaning as assigned to it in clause (28) of section 2 of the Motor Vehicles Act, 1988 (59 of 1988); Adopted meaning and de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finition. (77) non-resident taxable person means any person who occasionally undertakes transactions involving supply of goods or services or both, whether as principal or agent or in any other capacity, but who has no fixed place of business or residence in India; Any person who has no fixed place of business or residence in India who occasionally undertake transactions in any capacity is covered. A person having fixed place of residence or business will not be covered by this clause. (78) non-taxable supply means a supply of goods or services or both which is not leviable to tax under this Act or under the Integrated Goods and Services Tax Act ; (79) non-taxable territory means the territory which is outside the taxable territory; To read with definition of the taxable territory as per clause 109) taxable territory means the territory to which the provisions of this Act apply; As per S.1 (2) It extends to the whole of India. (80) notification means a notification published in the Official Gazette and the expressi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons notify and notified shall be construed accordingly; (81) other territory includes territories other than those comprising in a State and those referred to in sub-clauses (a) to (e) of clause (114) ; (82) output tax in relation to a taxable person , means the tax chargeable under this Act on taxable supply of goods or services or both made by him or by his agent but excludes tax payable by him on reverse charge basis ; As the expression output tax suggest it is in relation to supply of goods and services. Tax under reverse charge basis will naturally be on inputs , therefore, exclusion seems superfluous. (83) outward supply in relation to a taxable person, means supply of goods or services or both , whether by sale, transfer, barter, exchange, licence, rental, lease or disposal or any other mode, made or agreed to be made by such person in the course or furtherance of business; (84) person includes (a) an individual; (b) a Hindu Undivided Family; (c) a company; (d) a firm; (e) a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Limited Liability Partnership; (f) an association of persons or a body of individuals, whether incorporated or not, in India or outside India; (g) any corporation established by or under any Central Act, State Act or Provincial Ac t or a Government company as defined in clause (45) of section 2 of the Companies Act, 2013 (18 of 2013); (h) any body corporate incorporated by or under the laws of a country outside India; (i) a co-operative society registered under any law relating to co-operative societies; (j) a local authority; (k) Central Government or a State Government; (l) society as defined under the Societies Registration Act, 1860 (21 of 1860) ; (m) trust; and (n) every artificial juridical person, not falling within any of the above; This is an inclusive definition. Therefore, other entities can also be included if context so require. (85) place of business includes (a) a place from where the business is ordinarily carried on, and includes a warehouse, a godown or any other place where a taxable person stores his goods, supplies or receives goods or ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vices or both; or (b) a place where a taxable person maintains his books of account; or (c) a place where a taxable person is engaged in business through an agent, by whatever name called; Inclusive definition is wider in scope. Therefore, other place of business not specified in section can also be included if it falls within contextual meaning. (86) place of supply means the place of supply as referred to in Chapter V of the Integrated Goods and Services Tax Act; To read with Chapter V of the IGST Act. (87) prescribed means prescribed by rules made under this Act on the recommendations of the Council; recommendations of the Council seems a precondition before prescribing by rules. (88) principal means a person on whose behalf an agent carries on the business of supply or receipt of goods or services or both; (89) principal place of business means the place of business specified as the principal place of business in the certificate of registration; (90) principal sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ply means the supply of goods or services which constitutes the predominant element of a composite supply and to which any other supply forming part of that composite supply is ancillary; (91) proper officer in relation to any function to be performed under this Act, means the Commissioner or the officer of the central tax who is assigned that function by the Commissioner in the Board ; (92) quarter shall mean a period comprising three consecutive calendar months, ending on the last day of March, June , September and December of a calendar year; (93) recipient of supply of goods or services or both, means (a) where a consideration is payable for the supply of goods or services or both , the person who is liable to pay that consideration; (b) where no consideration is payable for the supply of goods, the person to whom the goods are delivered or made available, or to whom possession or use of the goods is given or made available; and (c) where no consideration is payable for the supply of a service, the person to whom the service is re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndered, and any reference to a person to whom a supply is made shall be construed as a reference to the recipient of the supply and shall include an agent acting as such on behalf of the recipient in relation to the goods or services or both supplied; (94) registered person means a person who is registered under section 25 but does not include a person having a Unique Identity Number; Unique identity number find place in chapters VI relating to Registration and Chapter XXI Miscellaneous of the CGST Act. (95) regulations means the regulations made by the Board under this Act on the recommendations of the Council; Prior recommendations of the Council is a precondition. (96) removal in relation to goods, means- (a) despatch of the goods for delivery by the supplier thereof or by any other person acting on behalf of such supplier; or (b) collection of the goods by the recipient thereof or by any other person acting on behalf of such recipient; (97) return means any return prescribed or otherwis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e required to be furnished by or under this Act or the rules made thereunder; (98 ) reverse charge means the liability to pay tax by the recipient of supply of goods or services or both instead of the supplier of such goods or services or both under sub-section (3) or sub-section (4) of section 9 , or under sub-section (3) or subsection (4) of section 5 of the Integrated Goods and Services Tax Act; To be read with other provisions referred to in this for a thorough study and as and when required. (99) Revisional Authority means an authority appointed or authorised for revision of decision or orders as referred to in section 108 ; (100) Schedule means a Schedule appended to this Act; (101) securities shall have the same meaning as assigned to it in clause (h) of section 2 of the Securities Contracts (Regulation) Act, 1956 (42 of 1956) ; Adopted meaning (102) services means anything other than goods, money and securities but includes activities relating to the use of money ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or its conversion by cash or by any other mode, from one form, currency or denomination, to another form, currency or denomination for which a separate consideration is charged; [ Explanation. For the removal of doubts , it is hereby clarified that the expression services includes facilitating or arranging transactions in securities; ] Whether any service can be called a anything or a thing? Subject to above, the definition provides a meaning which is wider because limited items are excluded namely money and securities. However, specific inclusion of some services after words but includes and in Explanation given, scope of different views is there that any other service not being a thing and not specifically is not covered. (103) State includes a Union territory with Legislature; Union territories are mentioned in clause (114) of this section. This does not include The National Capital Territory of Delhi and Union Territory of Puducherry because they have own Legislature. (105) supplier in relation to any goods or services or both, shall mean the person supplying the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid goods or services or both and shall include an agent acting as such on behalf of such supplier in relation to the goods or services or both supplied; (106) tax period means the period for which the return is required to be furnished; (107) taxable person means a person who is registered or liable to be registered under section 22 or section 24 ; (108) taxable supply means a supply of goods or services or both which is leviable to tax under this Act; (109) taxable territory means the territory to which the provisions of this Act apply; See section 1(2) It extends to the whole of India. (110) telecommunication service means service of any description (including electronic mail, voice mail, data services, audio text services, video text services, radio paging and cellular mobile telephone services) which is made available to users by means of any transmission or reception of signs, signals, writing, images and sounds or intelligence of any nature, by wire, radio, visual or other electromagnetic means ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; The definition is poorly drafted. For better understanding we can put it as follows: { telecommunication service means service of any description which is made available to users by means of any transmission or reception of signs, signals, writing, images and sounds or intelligence of any nature, by wire, radio, visual or other electromagnetic means; And includes electronic mail, voice mail, data services, audio text services, video text services, radio paging and cellular mobile telephone services.} In fact, words within bracket are not required because all such services are provided through one or more means mentioned in definition. (111) the State Goods and Services Tax Act means the respective State Goods and Services Tax Act, 2017; (112) turnover in State or turnover in Union territory means the aggregate value of all taxable supplies (excluding the value of inward supplies on which tax is payable by a person on reverse charge basis) and exempt supplies made within a State or Union territory by a taxable person, exports of goods or services or both and inter-State supplies of goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds or services or both made from the State or Union territory by the said taxable person but excludes central tax, State tax, Union territory tax, integrated tax and cess; turnover in State and turnover in Union territory Both deserves to be separately defined for easy understanding. Exclusion of inward supply is not required because purchases / inward supply are not a part of turnover in any sense relating to turnover of output or outward goods. Definition has become complex , un-necessarily. Complexity always can lead to litigation. (113) usual place of residence means (a) in case of an individual, the place where he ordinarily resides; (b) in other cases, the place where the person is incorporated or otherwise legally constituted; (114) Union territory means the territory of- (a) the Andaman and Nicobar Islands; (b) Lakshadweep; 12 [ (c) Dadra and Nagar Haveli and Daman and Diu; (d) Ladakh; ] (e) Chandigarh; 13 [ **** ] 14 [ (ea) Ladakh; and ] (f) other territory. Explanation. For the purposes o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f this Act, each of the territories specified in sub-clauses (a) to (f) shall be considered to be a separate Union territory; (115) Union territory tax means the Union territory goods and services tax levied under the Union Territory Goods and Services Tax Act; (116) Union Territory Goods and Services Tax Act means the Union Territory Goods and Services Tax Act, 2017 ; (117) valid return means a return furnished under sub-section (1) of section 39 on which self-assessed tax has been paid in full; (118) voucher means an instrument where there is an obligation to accept it as consideration or part consideration for a supply of goods or services or both and where the goods or services or both to be supplied or the identities of their potential suppliers are either indicated on the instrument itself or in related documentation, including the terms and conditions of use of such instrument; In context of GST related provisions word voucher is not suitable. Because word voucher is used for different type of vouchers in accounts. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In view of related provisions of the Act it would be better to use some other words like supply memo or delivery memo for use by supplier and receipt memo for goods received by buyer. (119) works contract means a contract for building, construction, fabrication, completion, erection, installation, fitting out, improvement, modification, repair, maintenance, renovation, alteration or commissioning of any immovable property wherein transfer of property in goods (whether as goods or in some other form) is involved in the execution of such contract; According to this meaning contract for engineering services, labour supply services will not fall in works contract in absence of transfer of property in goods. We find no definition of works contract service however that expression has been used in relation to ITC and CENVAT during transitional period. (120) words and expressions used and not defined in this Act but defined in the Integrated Goods and Services Tax Act , the Union Territory Goods and Services Tax Act and the Goods and Services Tax (Compensation to States) Act shall have t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same meaning as assigned to them in those Acts; Adopted meaning in case any word is used in this Act but has not been defined. Adopted meaning can be from IGSt, Or UT GST, State GST and the Goods and Services Tax (Compensation to States) Act. What will happen if any word find different meaning in any of these enactments? Whether , a meaning which gives more benefit can be applied. - Reply By DEV KUMAR KOTHARI as = During review, it transpired that clause (104) of CGST Act was missed in the published article may be due to some technical error in writing and transmission of article. The said clause is discussed below: (104) ―State tax means the tax levied under any State Goods and Services Tax Act Comments: GST law of concerned state will govern state tax. These are largely similar to provisions of CGST Act , because recommendations of GST council are required. However, States have their own powers and there can be differences, but those have to be cleared by the Council. For example, in Andhra Pradesh Goods and Services Tax Act, 2017 the following corresponding definitions are found: Council (36) Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uncil means the Goods and Services Tax Council established under article 279A of the Constitution of India; and therefore, attempt is to keep uniformity with CGST Act with necessary adaptations. (53) Government means the Government of Andhra Pradesh; (103) State means the State of Andhra Pradesh; (104) State tax means the tax levied under this Act; Other States have also law on similar lines. Therefore , harmony is found in various GST Laws. Dated: 4-8-2022 - Scholarly articles for knowledge sharing authors experts professionals Tax Management India - taxmanagementindia - taxmanagement - taxmanagementindia.com - TMI - TaxTMI - TMITax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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