#TaxmannPPT | Recent Changes in GST with Specific Reference to Fake Invoicing Issues

RECENT CHANGES IN GST WITH SPECIFIC REFERENCE TO FAKE INVOICING ISSUES

CA (Dr.) AYUSH SARAF caayushsaraf@gmail.com

EXEMPTION ON GOODS WITHDRAWN W.E.F. 18-07-2022 Chapter/ Heading 0202, 0203, 0204, 0205, 0206, 0207, 0208, 0209, 0210 0303, 0304, 0305,0306, 0307, 0308, 0309

.

Particulars All goods, other than fresh or chilled, other than pre-packaged and labelled.

All goods, other than fresh or chilled and, other than pre-packaged and labelled.

403

Curd, Lassi, Butter milk, other than pre-packaged and labelled.

406 409

Chena or paneer, other than pre-packaged and labelled.

Natural honey, other than pre-packaged and labelled.

504

All goods, other than fresh or chilled, other than pre-packaged and labelled.

713

Dried leguminous vegetables, shelled, whether or not skinned or split, other than pre-packaged and labelled.

714

Manioc, arrowroot, salep, Jerusalem artichokes, sweet potatoes and similar roots and tubers with high starch or inulin content, frozen, whether or not sliced or in the form of pellets, other than pre-packaged and labelled.

8 1001 1002 1003

Dried makhana, whether or not shelled or peeled,other than pre-packaged and labelled.

Wheatandmeslin, otherthanpre-packagedandlabelled.

Rye, other than pre-packaged and labelled.

Barley, other than pre-packaged and labelled.

.

1004

Oats,otherthanthose, otherthanpre-packagedandlabelled.

1005

Maize (corn), other than pre-packaged and labelled.

1006

Rice, other than pre-packaged and labelled.

1007

Grain sorghum, other than pre-packaged and labelled.

1008

Buckwheat, millet and canary seed; other cereals such as Jawar, Bajra, Ragi, other than prepackagedandlabelled.

1101

Wheat ormeslinflour, otherthanpre-packagedandlabelled.

1102

Cereal flours other than of wheat or meslin, maize (corn) flour, Rye flour, etc., other than pre packagedandlabelled.

1103

Cereal groats, meal and pellets, other than pre-packaged and labelled.

1105

Flour, powder, flakes, granules or pellets of potatoes,other than pre-packaged and labelled.

1106

Flour, of the dried leguminous vegetables of heading 0713 (pulses) , other than guar meal 1106 10 10 and guar gum refined split 1106 10 90, of sago or of roots or tubers of heading 0714 or of the products of Chapter 8 i.e. of tamarind, of singoda, mango flour, etc., other than prepackagedandlabelled.

1701 or 1702

1904

.

2009 89 90

Jaggery of all types including Cane Jaggery (gur), Palmyra Jaggery; Khandsari Sugar, other than pre-packaged and labelled.

Puffed rice, commonly known as Muri, flattened or beaten rice, commonly known as Chira, parched rice, commonly known as khoi, parched paddy or rice coated with sugar or gur, commonly known as Murki, otherthanpre-packagedandlabelled.

Tendercoconutwater,otherthanpre-packagedandlabelled.

Water, 2201

other than aerated, mineral, purified, distilled, medicinal, ionic, battery, de-mineralized and water sold in sealed container

3101

All goods and organic manure, other than pre-packaged and labelled.

4907

Cheques, lose or in book form

4905

Mapsandhydrographicorsimilarchartsofallkinds,including atlases,wallmaps,topographicalplansandglobes, printed.

53

8807

Coir pith compost, other than pre-packaged and labelled

Parts of goods of heading 8801

PRE-PACKAGED AND LABELLED COMMODITY “(ii) The expression ‘pre-packaged and labelled’ means a ‘pre-packaged commodity’ as defined in clauses (l) of section 2 of the Legal Metrology Act, 2009 (1 of 2010) where, the package in which the commodity is pre-packed or a label securely affixed thereto is required to bear the declarations under the provisions of the Legal Metrology Act, 2009 (1 of 2010) and the rules made thereunder.”.

Thus, supply of such specified commodity having the following two attributes would attract GST:

It is pre-packaged; and It is required to bear the declarations under the provisions of the Legal Metrology Act, 2009 (1 of 2010) and the rules made thereunder.

(l) “pre-packaged commodity” means a commodity which without the purchaser being present is placed in a package of whatever nature, whether sealed or not, so that the product contained therein has a pre-determined quantity; However, if such specified commodities are supplied in a package that do not require declaration(s)/compliance(s) under the Legal Metrology Act, 2009 (1 of 2010), and the rules made thereunder, the same would not be treated as pre-packaged and labelled for the purposes of GST levy.

INSTANCES Package Weight

GST Levy?

10 Kg

Yes

25 Kg

Yes

26 Kg

No

50 Kg

No

Larger package of 50 kg with smaller 10 kg prepackaged and labelled packages (Point 4 of FAQs)

Yes

ISSUES INVOLVED Whether GST Levied in case a manufacturer sells pre-packaged and labelled goods to a distributor/ wholesaler?

What if retailer purchases a package containing 25 kgs of rice by paying 5% GST to the wholesaler and then sells it loose to the consumer in a manner that it does not fall within the definition of pre-packaged and labelled goods?

Whether tax is payable if such packaged commodities are supplied for consumption by industrial consumers or institutional consumers?

What if a dealer is required to make declarations under Legal Metrology Act, but does not do so?

Works contract involving construction, erection, commissioning, installation, completion, fitting out, repair, maintenance, renovation, or alteration of following rendered to Government or Local authority are earlier taxed at 12% and now increased to 18%  Historical monuments, archaeological site or remains of national importance, archaeological excavation, or antiquity

IMPLICATIONS ON CONTRACTORS

 Canals, dams or other irrigation works  Pipelines, conduit or plants for water supply, water treatment or sewerage treatment or disposal  Civil structure or any other original works meant predominantly for use other than for commerce, industry, or any other business or profession;  a structure meant predominantly for use as (i) an educational, (ii) a clinical, or(iii) an art or cultural establishment; or

a residential complex predominantly meant for self-use or the use of their employees or other persons (MP’s, MLA’s etc.,)

The following works contracts were taxed at 12% (now increased to 18%) irrespective of the recipient status (whether Government or private parties)  Road, bridge, tunnel, or terminal for road transportation for use by general public  Various structures constructed under Housing schemes of Government  Pollution control or effluent treatment plant, except located as a part of a factory

IMPLICATIONS ON CONTRACTORS

 Structure meant for funeral, burial or cremation of deceased  Building owned by an entity registered u/s. 12AA or 12AB of the Income Tax Act, 1961 & used for carrying out the providing, centralised cooking or distribution, for mid-day meals under the mid-day meal scheme sponsored by the Government/local authorities  Railways, including monorail and metro  Single residential unit (other than part of complex)  Low-cost houses approved under housing schemes  Post-harvest storage infrastructure for agricultural produce including a cold storage for such purposes; or Mechanised food grain handling system, machinery or equipment for units processing agricultural produce as food stuff excluding alcoholic beverages.

 What are the changes in case of works contract involving predominantly earth work provided to the Central Government, State Government, Union Territory, Local Authority?  What happens if such work is sub-contracted?

QUESTIONS INVOLVED

 What about the transitional phase?  Is it justified towards the contractors with existing contracts in hand?

Sl. No.

IMPLICATIONS ON

Room Rent

GST Rate

1

Rs. 1/- to Rs. 1,000/- per day

12%

2

Rs. 1,001/- to Rs. 7500/- per day

12%

3

More Than Rs. 7501/-

18%

HOTEL INDUSTRY

Notification No. 03/2022- Central Tax (Rate) dated 13th July, 2022 w.e.f. July 18, 2022 the GTA’s are having the following options of taxability: Option Provided

IMPLICATIONS ON GOODS TRANSPORT OPERATORS

Tax Rate

Condition Applied



GST is to be paid by the recipient of services under reverse charge mechanism.



No ITC can be availed by the GTA in case of goods and services used in providing the services.



ITC is not eligible to GTA in payment of output liability.



No need to pay liability under RCM by the recipient of services.



ITC of GST Paid can be availed by the recipient of services.

:

GTA Opting for reverse charge

GTA Opting for forward charge

5%

5%

GTA Opting for forward charge

IMPLICATIONS ON GOODS TRANSPORT OPERATORS

12%



ITC is eligible to GTA in payment of output liability.



No need to pay liability under RCM by the recipient of services.



ITC of GST Paid can be availed by the recipient of services.

:

Conditions for Availing the Option  The option by GTA to itself pay GST on the services supplied by it during a Financial Year shall be exercised by making a declaration in Annexure V on or before the 15th March of the preceding Financial Year.  Option for the Financial Year 2022-2023 shall be exercised on or before the 16th August, 2022.

Notification No. 04/2022 - Central Tax (Rate) dated 13th July, 2022 amends Serial No. 12 of Notification No.12/2017-Central Tax (Rate), dated the 28th June, 2017: Service Code

IMPLICATIONS ON RENT FOR RESIDENTIAL DWELLING :

Heading 9963 or Heading 9972

Description of Services Services by way of renting of residential dwelling for use as residence except where the residential dwelling is rented to a registered person

Rate (per cent.)

Condition

Nil

Nil

After serial number 5A in Notification No. No.13/2017Central Tax (Rate), dated the 28th June, 2017, the following serial number and entries shall be inserted (1)

IMPLICATIONS ON RENT FOR RESIDENTIAL DWELLING :

5AA

(2) Service by way of renting of residential dwelling to a registered person

(3)

(4)

Any person

Any registered person

ISSUES INVOLVED  If in case of a proprietorship firm, the proprietor pays rent for his personal residential dwelling which is not claimed as business expenditure, will GST be levied in such a transaction?  What in case of charitable institutions providing subsidised residential dwelling (Dharamshalas) registered u/s 12AA of Income Tax Act, 1961 (43 of 1961)?

Situation

UTILISATION OF THE : AMOUNTS AVAILABLE IN THE ELECTRONIC CREDIT LEDGER AND THE ELECTRONIC CASH LEDGER FOR PAYMENT OF TAX AND OTHER LIABILITIES

Clarification

Any payment towards output tax, whether self-assessed in the return or payable as a consequence of any proceeding instituted under the provisions of GST Laws, Amount available in electronic can be made by utilization of the amount available in the credit ledger electronic credit ledger of a registered person (But excluding tax payable under RCM, Interest, Penalty, Fee, Re-payment of Erroneous Refund)

May be used for making any payment towards tax, Amount available in electronic interest, penalty, fees or any other amount payable under cash ledger the provisions of the GST Laws

FAKE INVOICE (Defined vide SOP F. No. GST/INV/FAKE INVOICES/18-19 DATED 12-05-2019)

What is a

fake

Either

invoice ?

ISSUED WITHOUT ACTUAL SUPPLY OF GOODS/ SERVICES

WITHOUT GST PAYMENT

TYPES OF FAKE INVOICES .

CASE 1: NO UNDERLYING GOODS OR SERVICES

CASE 2: DIVERSION OF BILLS

CASE 3: SHELL COMPANIES/ ENTITIES

How the FRAUD is committed

A

D

E

H

B

C

F

G

I

MOTIVES BEHIND ISSUING/ availing FAKE INVOICES MOTIVE

REASON

MOTIVE 1

AVOIDING CASH PAYMENT OF GST

MOTIVE 2

CONVERTING EXCESS ITC INTO CASH

MOTIVE 3

INFLATING TURNOVER

MOTIVE 4

BOGUS EXPENDITURE

MOTIVE 5

DIVERSION OF FUNDS

MOTIVE 6

MONEY LAUNDERING

C O N S E Q U E N C E O F FA K E I N VO I C E S SL. NO.

CONSEQUENCE

1

SECTION 16(2)

2

Sec.122(1)(ii) – ISSUER issues any invoice or bill without supply of goods or services or both in violation of the provisions of this Act or the rules made thereunder

3

Sec.122(1)(vii) – RECEIVER takes or utilizes input tax credit without actual receipt of goods or services or both either fully or partially, in contravention of the provisions of this Act or the rules made thereunder

4

RULE 86A- BLOCKING CREDIT

5

SUMMON U/S 70

6

INSPECTION, SEARCH & SEIZURE U/S 67

7

ARREST

16. Eligibility and conditions for taking input tax credit (2) Notwithstanding anything contained in this section, no registered person shall be entitled to the credit of any input tax in respect of any supply of goods or services or both to him unless,

:

ISSUES PERTAINING TO FAKE INVOICING

(a) he is in possession of a tax invoice or debit note issued by a supplier registered under this Act, or such other tax paying documents as may be prescribed; (aa) the details of the invoice or debit note referred to in clause (a) has been furnished by the supplier in the statement of outward supplies and such details have been communicated to the recipient of such invoice or debit note in the manner specified under section 37; (b) he has received the goods or services or both. (ba) the details of input tax credit in respect of the said supply communicated to such registered person under section 38 has not been restricted; (c) subject to the provisions of section 41, the tax charged in respect of such supply has been actually paid to the Government, either in cash or through utilisation of input tax credit admissible in respect of the said supply; and (d) he has furnished the return under section 39:

CASE 1 COMPANY “A” ISSUED INVOICE TO COMPANY “B” WITHOUT ANY SUPPLY OF GOOD OR SERVICES OR BOTH. WHAT IS THE LIABILITY OF “A” AND “B”?

CASE 2 :

ISSUES PERTAINING TO FAKE INVOICING

COMPANY “A” ISSUED INVOICE TO COMPANY “B” WITHOUT ANY SUPPLY OF GOOD OR SERVICES OR BOTH. COMPANY “B” UTILISED THE ITC PASSED ON BY “A” AND ISSUES INVOICE TO COMPANY “C” WITH UNDERLYING GOODS. WHAT IS THE LIABILITY OF “A” AND “B”?

QUERY WHAT ABOUT “C” WHO HAS GENUINELY PURCHASED GOODS FROM “B”?

Sec.122. Penalty for certain offences (1A) Any person who retains the benefit of a transaction covered under clauses (i), (ii), (vii) or clause (ix) of sub-section (1) and at whose instance such transaction is conducted, shall be liable to a penalty of an amount equivalent to the tax evaded or input tax credit availed of or passed on. :

1) SUPPLY WITHOUT INVOICE

LIABILITY OF PROFESSIONALS

2) ISSUE OF INVOICE IN VIOLATION OF LAW LEADING TO WRONG AVAILMENT OF ITC 3) ITC WITHOUT GOODS

4) WRONG ITC IN CASE OF ISD

Sec.132. Punishment for certain offences

(1) Whoever commits, or causes to commit and retain the benefits arising out of, any of the following offences, namely::

LIABILITY OF PROFESSIONALS

1) Supply Without Invoice 2) Issue Of Invoice In Violation Of Law Leading To Wrong Availment Of ITC 3) Avails ITC On Invoice As Per 2 Above Or Without Any Invoice 4) Collects Tax But Does Not Pay 3 Months 5) Evades Tax Or Fraud Refund

6) False Records Etc. shall be punishable

132(1) Whoever commits, or causes to commit and retain the benefits arising out of, any of the following offences, namely:(a) ………………

……………….

…………..

ARREST

(b) issues any invoice or bill without supply of goods or services or both in violation of the provisions of this Act, or the rules made thereunder leading to wrongful availment or utilisation of input tax credit or refund of tax;

PROVISIONS

(c) avails input tax credit using the invoice or bill referred to in clause (b) or fraudulently avails input tax credit without any invoice or bill; SHALL BE PUNISHABLE

a) ITC ON FAKE INVOICE GREATER THAN 5 CR – JAIL UPTO 5 YRS AND COGNISABLE

b) ITC ON FAKE INVOICE GREATER THAN 2 CR LESS THAN 5 CR – JAIL UPTO 3 YRS AND NON-COGNISABLE

c) ITC ON FAKE INVOICE GREATER THAN 1 CR LESS THAN 2 CR – JAIL UPTO 1 YRS AND NON-COGNISABLE

Sec. 83. (RULE 159)

Provisional attachment to protect revenue in certain cases.

:

LIABILITY OF PROFESSIONALS

(1) Where, after the initiation of any proceeding under Chapter XII, Chapter XIV or chapter XV, the Commissioner is of the opinion that for the purpose of protecting the interest of the Government revenue it is necessary so to do, he may, by order in writing, attach provisionally, any property, including bank account, belonging to the taxable person or any person specified in sub-section (1A) of section 122, in such manner as may be prescribed.

(2) Every such provisional attachment shall cease to have effect after the expiry of a period of one year from the date of the order made under sub-section (1).

(1) Without prejudice to any other provisions of this Act, if during any proceeding under this Act, it is found that in the books of account maintained by any person there is

271AAD PENALTY

(i) a false entry; or (ii) an omission of any entry which is relevant for computation of total income of such person, to evade tax liability,

FOR FALSE

the Assessing Officer may direct that such person shall pay by way of penalty a sum equal to the aggregate amount of such false or omitted entry.

ENTRY, ETC.,

(2) Without prejudice to the provisions of sub-section (1), the Assessing Officer may direct that any other person, who causes the person referred to in sub-section (1) in any manner to make a false entry or omits or causes to omit any entry referred to in that sub-section, shall pay by way of penalty a sum equal to the aggregate amount of such false or omitted entry.

IN BOOKS OF

Explanation.—For the purposes of this section, "false entry" includes use or intention to use

(a) forged or falsified documents such as a false invoice or, in general, a false piece of documentary evidence; or

ACCOUNT

(b) invoice in respect of supply or receipt of goods or services or both issued by the person or any other person without actual supply or receipt of such goods or services or both; or

(c) invoice in respect of supply or receipt of goods or services or both to or from a person who does not exist.

FORMULA BEFORE AMENDMENT

Maximum Refund Amount

:

= {(Turnover of inverted rated supply of goods and services) x Net ITC ÷ Adjusted Total Turnover} – tax payable on such inverted rated supply of goods and services

INVERTED DUTY REFUND FORMULA AFTER AMENDMENT Maximum Refund Amount = {(Turnover of inverted rated supply of goods and services) x Net ITC ÷ Adjusted Total Turnover} – {tax payable on such inverted rated supply of goods and services x (Net ITC ÷ ITC availed on inputs and input services)}

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