Concept of RCM:
Section 9(3) of the CGST/SGST (UTGST) Act reads “The Government may, on the recommendations of the Council, by notification, specify categories of supply of goods or services or both, the tax on which shall be paid on reverse charge basis by the recipient of such goods or services or both and all the provisions of this Act shall apply to such recipient as if he is the person liable for paying the tax in relation to the supply of such goods or services or both.”
Section 5(3) of the IGST Act reads “The Government may, on the recommendations of the Council, by notification, specify categories of supply of goods or services or both, the tax on which shall be paid on reverse charge basis by the recipient of such goods or services or both and all the provisions of this Act shall apply to such recipient as if he is the person liable for paying the tax in relation to the supply of such goods or services or both.”
Whereas taxable supplies by any unregistered person to a registered person – This is covered under Section 9(4) of the CGST/SGST (UTGST) Act and Section 5(4) of the IGST Act.
Notified Categories of services on which tax will be payable under RCM:
(Notification No. 13/2017- Central Tax (Rate) dated 28/06/2017 & other notifications)
Updated listtill 31/03/2020
| Sl. No. | Category of Supply of Services | Supplier of service |
Recipient of Service |
| (1) | (2) | (3) | (4) |
| 1 | Supply of Services by a goods transport agency (GTA) who has not paid central tax at the rate of 6%, in respect of transportation of goods by road to-
(a) any factory registered under or governed by the Factories Act, 1948(63 of 1948);or (b) any society registered under the Societies Registration Act, 1860 (21 of 1860) or under any other law for the time being in force in any part of India; or (c) any co-operative society (d) any person registered under the Central Goods and Services Tax Act or the Integrated Goods and Services Tax Act or the State (e) any body corporate established, by or under any law; or (f) any partnership firm whether registered or not under any law including association of persons; or (g) any casual taxable person Provided that nothing contained in this entry shall apply to services provided by a goods transport agency, by way of transport of goods in a goods carriage by road, to, – (a) a Department or Establishment of the Central Government or State Govt. or Union territory; or (b) local authority; or (c) Governmental agencies, which has taken registration under the Central Goods and Services Tax Act, 2017 (12 of 2017) only for the purpose of deducting tax under section 51 and not for making a taxable supply of goods or services. |
Goods Transport Agency (GTA) | (a) Any factory registered under or governed by the Factories Act, 1948(63 of 1948); or
(b) any society registered under the Societies Registration Act, 1860 (21 of 1860) or under any other law for the time being in force in any part of India; or (c) any co-operative society (d) any person registered under the Central Goods and Services Tax Act or the Integrated Goods and Services Tax Act or the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act; or (e) any body corporate established, by or under any law; or (f) any partnership firm whether registered or not under any law including association of persons; or (g) any casual taxable person; located in the taxable territory. |
| 2 | Services supplied by an individual advocate including a senior advocate by way of representational services before any court, tribunal or authority, directly or indirectly, to any business entity located in the taxable territory, including where contract for provision of such service has been entered through another advocate or a firm of advocates, or by a firm of advocates, by way of legal services, to a business entity |
An individual advocate including a senior advocate or firm of advocates. | Any business entity located in the taxable territory. |
| 3 | Services supplied by an arbitral tribunal to a business entity | An arbitral tribunal | Any business entity located in the taxable territory |
| 4 | Services provided by way of sponsorship to any body corporate or partnership firm |
Any person | Any body corporate or partnership firm located in the taxable territory |
| 5 | Services supplied by the Central Government, State Government, Union territory or local authority to a business entity excluding, – (1) renting of immovable property, and(2) services specified below-(i) services by the Department of Posts by way of speed post, express parcel post, life insurance, and agency services provided to a person other than Central Government, State Government or Union territory or local authority;(ii) services in relation to an aircraft or a vessel, inside or outside the precincts of a port or an airport;(iii) transport of goods or passengers. |
Central Government, State Government, Union territory or local authority |
Any business entity located in the taxable territory |
| 5A | Services supplied by the Central Government, State Government, Union territory or local authority by way of renting of immovable property to a person registered under the Central Goods and Services Tax Act, 2017 (12 of 2017). |
Central Government, State Government, Union territory or local authority |
Any person registered under the Central Goods and Services Tax Act, 2017.” |
| “5B | Services supplied by any person by way of transfer of development rights or Floor Space Index (FSI) (including additional FSI) for construction of a project by a promoter | Any person | Promoter |
| 5C | Long term lease of land (30 years or more) by any person against consideration in the form of upfront amount (called as premium, salami, cost, price, development charges or by any other name) and/or periodic rent for construction of a project by a promoter | Any person | Promoter |
| 6 | Services supplied by a director of a company or a body corporate to the said company or the body corporate | A director of a company or a body corporate | The company or a body corporate located in the taxable territory |
| 7 | Services supplied by an insurance agent to any person carrying on insurance business. | An insurance agent | Any person carrying on insurance business, located in the taxable territory |
| 8 | Services supplied by a recovery agent to a banking company or a financial institution or a non banking financial company |
A recovery agent | A banking company or a financial institution or a non-banking financial company, located in the taxable territory |
| 9 | Supply of services by an author, music composer, photographer, artist or the like by way of transfer or permitting the use or enjoyment of a copyright covered under clause (a) of sub-section (1) of section 13 of the Copyright Act, 1957 relating to original literary, dramatic, musical or artistic works to a publisher, music company, producer or the like.
w.e.f. 01.10.2019 Supply of services by a music composer, photographer, artist or the like by way of transfer or permitting the use |
Author or music composer, photograp her, artist, or the like
Music composer, |
Publisher, music company, producer or the like, located in the taxable territory
Music company, |
| 9A | w.e.f. 01.10.2019 Supply of services by an author by way of transfer or permitting the use or enjoyment of a copyright covered under clause (a) of sub-section (1) of section 13 of the Copyright Act, 1957 relating to original literary works to a publisher. |
Author | Publisher located in the taxable territory. Provided that nothing contained in this entry shall apply where- (i) the author has taken registration under the Central Goods and Services Tax Act, 2017 (12 of 2017), and filed a declaration, within the time limit prescribed with the jurisdictional CGST or SGST commissioner, as the (ii) the author makes |
| 10 | Supply of services by the members of Overseeing Committee to Reserve Bank of India | Members of Overseeing Committee constituted by the Reserve Bank of India |
Reserve Bank of India. |
| 11 | Services supplied by individual Direct Selling Agents (DSAs) other than a body corporate, partnership or limited liability partnership firm to bank or non-banking financial company (NBFCs). | Individual Direct Selling Agents (DSAs) other than a body corporate, partnership or limited liability partnership firm. | A banking company or a non-banking financial company, located in the taxable territory |
| 12 | Services provided by business facilitator (BF) to a banking company | Business facilitator (BF) | A banking company, located in the taxable territory |
| 13 | Services provided by an agent of business correspondent (BC) to business correspondent (BC). | An agent of business correspondent (BC) |
A business correspondent, located in the taxable territory |
| 14 | Security services (services provided by way of supply of security personnel) provided to a registered person:
Provided that nothing contained in this entry shall apply to, – (i) (a) a Department or Establishment of the Central Govt. or State Government or Union territory; or (b) local authority; or (c) Governmental agencies; which has taken registration under the Central Goods and Services Tax Act, 2017 only for the purpose of deducting tax under section 51 of the Act and not for making a taxable supply of goods or services; or (ii) a registered person paying tax under section 10 of the said Act. |
Any person other than a body corporate | A registered person, located in the taxable territory |
| 15 | w.e.f. 01.10.2019 Services provided by way of renting of any motor vehicle designed to carry passengers where the cost of fuel is included in the consideration charged from the service recipient, provided to a body corporate. |
Any person, other than a body corporate who supplies the service to a body corporate and does not issue an invoice charging central tax at the rate of 6 per cent. to the service recipient | Any body corporate located in the taxable territory. |
| 16 | w.e.f. 01.10.2019 Services of lending of securities under Securities Lending Scheme, 1997 (“Scheme”) of Securities and Exchange Board of India (“SEBI”), as amended. |
Lender i.e. a person who deposits the securities registered in his name or in the name of any other person duly authorised on his behalf with an approved intermediary for the purpose of lending under the Scheme of SEBI |
Borrower i.e. a person who borrows the securities under the Scheme through an approved intermediary of SEBI. |
Applicability of RCM on Director Remuneration:
As per Entry 6 of Notification 13/2017 dated June 28, 2017 provides for RCM implications on the services rendered by the director of a company or body corporate to the said company or body corporate thereby creating an onus on the company to pay taxes under RCM on the said services supplied by directors. As per this entry director remuneration is liable to GST under RCM but there are some exceptions which are stated in Schedule III of CGST Act.
Schedule III of the CGST Act, deals with those areas which can be neither treated as supply of goods nor treated as supply of services.
“Services by employee to employer shall be regarded as neither supply of goods nor supply of services. However, service by employer to employee shall be a taxable service, which shall be covered by Schedule I-Entry 2 read with Valuation rules. Hence, providing cafeteria, recreation, sports facilities to employees will attract GST.”
Employee employer relationship is important in case of Directors; here are some notifications, circulars judgments of various authorities which established employee employer relationship between Director and Company.
Whole Time Director/Managing Director/Executive Director
Section 2(94) of the Companies Act, 2013 “whole-time director” includes a director in the whole-time employment of the company’
2018 ACR 927 CESTAT Kolkata in case of M/S. MAITHAN ALLOYS LTD
A whole-time director refers to a director who has been in employment of the company on a fulltime basis and is also entitled to receive remuneration. The position of a whole-time director is a position of significance under the Companies Act. Moreover, a whole-time director is considered and recognized as a ‘key managerial personnel’ under Section 2(51) of the Companies Act. Further, he is an officer in default [as defined in clause (60) of section 2] for any violation or non-compliance of the provisions of Companies Act. Thus, the whole time director is essentially an employee of the Company and accordingly, whatever remuneration is being paid in conformity with the provisions of the Companies Act, is pursuant to employer – employee relationship When the very provisions of the Companies Act makes whole time director (as also in capacity of key managerial personnel) responsible for any default / offences, it leads to the conclusion that those directors are employees of the assessee company.
General Circular No. 24/2012 dated 09.08.2012 issued by Ministry of Corporate Affairs confirms the fact that service tax is payable on the commission/sitting fees payable to the Non-Whole Time Directors of the company and the increase in the quantum of remuneration paid to them on account of service tax will not be considered for the purpose of approval of Central Government under section 309 and 310 of the Companies Act even if it exceeds the limit of 1% or 3% of the profit. This indicates that even the MCA, which is a part of government, believes that service tax is payable only on the sitting fees/commission payable to the directors and not on the salary paid to them during the course of employment.
Circular no. 115/09/2009-ST dated 31.07.2009 issued by CBEC in positive list tax regime clarified that remunerations paid to Managing Director / Directors of companies whether whole-time or independent when being compensated for their performance as Managing Director/Directors would not be liable to service tax. This indicates that amounts paid in relation to employment are not liable to service tax.
M/s. Allied Blenders and Distillers (P.) Ltd. CESTAT Mumbai
The Hon’ble CESTAT of Mumbai Bench vide its Order No. A/88105 of 2018 dated June 25, 2018 stated that it is crystal clear that the Directors, who are concerned with the management of the company, were declared to all statutory authorities as employees of the company and complied with the provisions of the respective Acts, Rules and Regulations indicating the Director as an employee of the company. No contrary evidence has been brought on record by the revenue to show that the Directors, who were employees of the assessee, received amount which cannot be said as ‘salary’ but fees paid for being Director of the company. The Income Tax authorities also assessed the remuneration paid to the said Directors as salary
Recently Contrary AAR held
M/s Alcon Consulting Engineers (India) Pvt. Ltd. (GST AAR Karnataka)
RULING
- The amounts paid to the employees of the applicant company as reimbursement of expenses incurred by them in the course of employment of the applicant company are not liable to tax under the provisions of the Goods and Services Tax Act, 2017 as the transaction of the services supplied by a supplier to the employee and paid by the employee is liable to tax after 30.09.2019.
- The remuneration paid to the Director of the applicant company is liable to tax under reverse charge mechanism under sub-section (3) of section 9 in the hands of the applicant company as it is covered under entry no. 6 of Notification No. 13/2017-Central Tax (Rate) dated 28.06.2017.
M/s. In re Clay Crafts India Pvt. Ltd. (GST AAR Rajasthan)
RULING
- The consideration paid to the Directors by the applicant company will attract GST under reverse charge mechanism as it is covered under entry No. 6 of Notification No. 13/2017 Central Tax (Rate) dated 28.06.2017 issued under Section 9(3) of the CGST Act, 2017.
- Situation will remain same as (a) above and will attract GST under reverse charge mechanism.
Conclusion:
- So in above ruling, department is denying the employee employer relationship between director and Company.
- So we can conclude following points from earlier judgments and notifications :
- Generally, whole-time/managing/executive directors are under a contractual employment. That means if it is clearly mentioned in the board resolution of company that whole-time director will receive salary/bonus for services rendered by them, then in obvious case it will not be considered as service and hence question of taxability under RCM does not arise.
- In case of any other directors i.e., non-whole time director or non-executive directors or independent Director are not employees of the company and hence any kind of amount received by them as in remuneration, sitting fees, commission etc. will be chargeable to tax under RCM.
- If company is deducting TDS u/s 192 of Income Tax Act, 1962 for making salary payment to directors and issuing Form-16 to its director, then again no GST is required to be paid under RCM.
- As per the Maharashtra State Tax on Professions, trades, callings &Employment Act, 1975, every employer is required to deduct Professional Tax on the salary & wage amount paid to employee. Hence company bound to deduct PT & this is a very much clear proof for non-payment of GST on amount received by directors from company. It is a sufficient statutory evidence to prove the employer-employee relationship.
- If this is the case then every company has to take GST registration if they are paying any remuneration to its whole-time director/Executive Director/ Managing Director to discharge their liability. As per the section 24 of CGST Act 2017 there are certain cases when GST registration is required to be taken by the supplier of goods or services or both. In this section supplier has to get itself registered irrespective of the fact that it has aggregate turnover will cross threshold limit or not. “Persons who are required to pay tax under reverse charge”
- This will create havoc in business community as lower authority will take the benefits of these AAR to send the notice and it will create unnecessary litigation. In current scenario,businesses are struggling for their existence hence such AAR will create extra burden.
- Further AAR is applicable to those who sought for it hence one can feel safe until department address such issue.
Disclosure: The views taken in this document are for guidance only and cannot be taken or used as legal advisory.
Article by – CA Vishal K. Singh