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TMI Blog2023 (11) TMI 658X X X X Extracts X X X X X X X X Extracts X X X X ..... services in the present case, to their employees in terms of the contractual agreement between the employer and his employees as submitted by them, are in lieu of the services provided by them to their employees in relation to employment. Therefore the perquisites provided by the employer to the employee, in terms of contractual agreement, will not be subjected to GST. However if the employer makes taxable supply of canteen services to employees by charging consideration for the purpose of business, instead of providing them as a perquisite, the same will be subject to payment of GST, at prescribed rates, as per provisions of CGST/TGST Act 2017. Whether the applicant is eligible to avail input tax credit in respect of the GST paid on inward supplies used for providing canteen facilities? - HELD THAT:- As per Section 17(5)(b) of CGST/TGST Act 2017 input tax credit in respect of such canteen facilities shall be available, where it is obligatory for an employer to provide the same to its employees under Factories Act, 1948. Whether GST is liable to be discharged on the recoveries being made by the applicant from its employees towards the transportation facilities provided to them? - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eclared that the questions raised in the application have neither been decided by nor are pending before any authority under any provisions of the GST Act. The application is therefore, admitted. 4. Brief facts of the case and averments of the applicant: 4.1 The applicant M/s. Kirby Building Systems Structures India Private Limited, Sangareddy are into the manufacture supply of pre-engineered buildings and storage racking systems. The applicant averred that they are providing canteen and transportation facilities to its employees at subsidized rates as per the terms of the employment agreement entered between the applicant and the employee. The applicant provided copies of employment agreement in Annexure-3 to the application. At Para 8.2 of the agreement it is enshrined that the Company will provide transportation and canteen facility at subsidized rates as per the policy from time to time . In light of the above agreement, the applicant further submits that by virtue of Section 46 of the Factories Act, 1948, they are obliged to run and maintain a canteen for their employees. That for this purpose the applicant is procuring canteen services from a third party who inturn is issuing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... warehouses, metro rails, supermarkets, aircraft hangars, sports stadiums, auditoriums, etc. Other products include structural steel, sandwich panels, storage solutions, Kirby Roof (KR), Kirby Wall (KW), Kirby Deep Decking Panel and Kirby Standing Seam Panel (KSS-600). 5. Questions raised: 1. Whether GST is liable to be discharged on the recoveries being made by the applicant from its employees towards the canteen and transportation facilities provided to them? 2. Whether the applicant is eligible to avail input tax credit in respect of the GST paid on inward supplies used for providing canteen and transportation facilities? 6. Personal Hearing: The Authorized representatives of the unit namely G. Jagannath, Advocate and P. Veera Reddy, General Manager attended the personal hearing held on 15.12.2022. The authorized representatives reiterated their averments in the application submitted. Opinion expressed by Sri S.V. Kasi Visweswara Rao, Additional Commissioner (State Member), on the issues raised by the applicant. 7. Discussion Findings: 1. Canteen Services: As seen from the contentions of the applicant they are obligated to provide canteen facility to their employees under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent provided for the canteen; (c) the cost of purchase, repairs and replacement of equipment including furniture, crockery, cutlery, and utensils; (d) the water charges and expenses for providing lighting and ventilation (e) the interest for the amount spent on the provision and maintenance of the building, furniture and equipment provided for the canteen; (f) the cost of fuel required for cooking or for heating stuffs or water; and (g) the wages to the employees servicing of the canteen and the cost of uniforms, if any provided to them (3) The charges per quantity of foods stuffs, beverages and any other item served in the canteen shall be conspicuously displayed in the language understood by the majority of workers. If the applicant has recovered all the above costs from the employees by availing the above facility in Rule 68 of Factories Rules, then it would not be a cost to the company and hence not an input on which input tax credit can be claimed. However if the applicant has recovered only nominal amounts and the applicant has recorded these costs borne by them in their books of accounts for providing the canteen services then they are eligible for input tax credit as enumer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seen from the above statutory provisions of the Factories Act, 1948, the factories with a specified number of employees are mandated to provide and maintain a canteen for such employees. 9.3 Clarification on various issues of section 17(5) of the CGST Act as per point no.3 of Circular No. 172/04/2022-GST dated 6 th July, 2022 issued by CBIC is produced below: Whether the proviso at the end of clause (b) of sub-section (5) of section 17 of the CGST Act is applicable to the entire clause (b) or the said proviso is applicable only to sub-clause (iii) of clause (b)? 1. Vide the Central Goods and Service Tax (Amendment Act) 2018, clause (b) of sub-section (5) of section 17 of the CGST Act was substituted with effect from 01.02.2019. After the said substitution, the proviso after subclause (iii) of clause (b) of sub-section (5) of section 17 of the CGST Act provides as under: Provided that the input tax credit in respect of such goods or services or both shall be available, where it is obligatory for an employer to provide the same to its employees under any law for the time being in force. 2. The said amendment in sub-section (5) of section 17 of the CGST Act was made based on the reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, 2022. As stated by the taxpayer he is a registered unit under Factories Act, 1948. 9.6 Perquisites provided by employer to the employees as per contractual agreement as per point no. 5 of Circular No. 172/04/2022-GST dated 6th July, 2022 is produced below: Whether various perquisites provided by the employer to its employees in terms of contractual agreement entered into between the employer and the employee are liable for GST? 1. Schedule III to the CGST Act provides that services by employee to the employer in the course of or in relation to his employment will not be considered as supply of goods or services and hence GST is not applicable on services rendered by employee to employer provided they are in the course of or in relation to employment. Any perquisites provided by the employer to its employees in terms of contractual agreement entered into between the employer and the employee are in lieu of the services provided by employee to the employer in relation to his employment. It follows there from that perquisites provided by the employer to the employee in terms of contractual agreement entered into between the employer and the employee, will not be subjected to GST wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or aircraft referred to in clause (a) or clause (aa) are used for the purposes specified therein; (ii) where received by a taxable person engaged (I) in the manufacture of such motor vehicles, vessels or aircraft; or (II) in the supply of general insurance services in respect of such motor vehicles, vessels or aircraft insured by him;] (b) [the following supply of goods or services or both (i) food and beverages, outdoor catering, beauty treatment, health services, cosmetic and plastic surgery, leasing, renting or hiring of motor vehicles, vessels or aircraft referred to in clause (a) or clause (aa) except when used for the purposes specified therein, life insurance and health insurance: Provided that the input tax credit in respect of such goods or services or both shall be available where an inward supply of such goods or services or both is used by a registered person for making an outward taxable supply of the same category of goods or services or both or as an element of a taxable composite or mixed supply; (iv) membership of a club, health and fitness centre; and (v) travel benefits extended to employees on vacation such as leave or home travel concession: Provided that the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were provided by the appellant therein to its employees by engaging the services of an outdoor caterer. This was sought to be treated as input service since there was a statutory duty on the appellant to establish a canteen for its employees. Considering the effect of definition of input service after 01.04.2011 it was found that establishment of such canteen was primarily for personal use or consumption of the employees and after such amendment no cenvat credit could be availed. This view has been upheld by the Hon ble Supreme Court while dismissing the Special Leave Petition on 18.11.2021 preferred by the said appellant. The facts of the present case also indicate that the facility of transportation provided by the appellant to its employees was merely in the nature of service for personal use or consumption of its employees. 9.12 It is pertinent to note that the Hon ble high court held its view on the nature of services, under contention between taxpayer and department, notwithstanding that they are not explicitly categorized as service for personal use or consumption of its employees under the provisions of the existing laws. Thus we find that the ratio of court judgment is ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spect of the GST paid on inward supplies used for providing canteen facilities? As per Section 17(5)(b) of CGST/TGST Act 2017 input tax credit in respect of such canteen facilities shall be available, where it is obligatory for an employer to provide the same to its employees under Factories Act, 1948. 3. Whether GST is liable to be discharged on the recoveries being made by the applicant from its employees towards the transportation facilities provided to them? The transportation services, if provided as a perquisite by the employer to the employee, in terms of contractual agreement between the employer and employee, will not be subjected to GST. However if the employer makes taxable supply of transportation services to employees by charging consideration for the purpose of business, instead of providing them as a perquisite, the same will be subject to payment of GST, at prescribed rates, as per provisions of CGST/TGST Act 2017. 4. Whether the applicant is eligible to avail input tax credit in respect of the GST paid on inward supplies used for providing transportation facilities? Provision of service of transportation of employees from residence to office premises is for persona ..... X X X X Extracts X X X X X X X X Extracts X X X X
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