Thursday, 26 October 2023

GST on Secondment of Employees - ITC Eligibility

 Karnataka High Court (‘HC'), in the case of Toyota Kirloskar Motor Pvt. Ltd, has granted stay on the Show Cause Notice (‘SCN') issued for denying ITC of GST paid on secondment of employees from a foreign entity to an Indian entity. 

Dispute

 

·            The taxpayer paid GST under Reverse Charge Mechanism (‘RCM') on secondment of employees pursuant to the decision of Hon'ble Supreme Court in the case of C.C., C.E. & S.T. vs. Northern Operating Systems, 2022-VIL-31-SC-ST dated 19-05-2022, in a Service Tax matter.

 

·            The Department issued SCN proposing to deny Input Tax Credit (‘ITC’) of the same applying time restriction under Section 16(4) of the CGST Act. The Department also proposed to levy interest and penalty.

 

HC Decision

 

The Hon'ble HC has granted interim stay on the SCNs and issued Notices to various respondents.

 

 | Remarks

 

·            As expected, the matter was bound to go to the Courts. At the same time, some taxpayers would think that they should wait for the final judgement in this case to take up their matter accordingly.

 

·            In our view, such approach sometimes backfires and Courts may only give relief to Petitioners which have knocked their doors and not to taxpayers in general. Therefore, we suggest all concerned taxpayers to file writs in their jurisdiction in line with the present writ.

 | Insights

 

1.              The present case does not deal with the valuation aspect but only the aspect of applicability of time limit of taking ITC in terms of Section 16(4) of the CGST Act. Thus, the value to be taken in terms of Rule 28 of the CGST Rules is still a question to ponder upon.

 

2.              The decision, when attain finality, would also shed light on the larger question of eligibility of ITC where GST is paid under RCM after the expiry of time limit under Section 16(4).


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