Cross-border transactions are intricate and complex in terms of indirect tax consequences in India. It is important to understand and analyse the applicability of a goods and services tax (GST) on cross-border transactions. This is an analysis of the GST implications of some pertinent situations and advance rulings.
Overseas trade between local companies. Supply of goods from a place outside India to another place outside India without them entering the country is not taxable under the Goods and Services Tax Act, 2017, irrespective of the fact that the supplier and/or the recipient is located in India. Clause 7 of schedule III of the act declares that such merchanting trade transactions are not considered the supply of goods or services. However, this is not applicable in the case of supply of services. Where services are provided with a supply of goods, GST is levied on the supply of services from a place outside India to another place outside India. Where transport, marketing or auxiliary business services are provided with a supply of goods, they attract GST.
Services by a provider abroad. Where technical and advisory services are provided by a non-resident outside India to someone located there, such services are generally subject to GST, and the responsibility for payment will be on the recipient. It is an import of services. However, this depends on the nature of the service being provided. If a foreign company provides technical and advisory services in relation to immovable property outside India, there will be no GST implications for either party, as the place of supply is outside India. Intermediary services are treated similarly. A non-resident having permanent establishment in India and providing technical services there is required to register and account for GST.
High sea sales. The GST council has clarified that final buyers are responsible for the payment of integrated goods and services tax (IGST) on filing import declarations for customs clearance. Clause 8 was added to schedule III of the GST act to provide that high sea sales and supply from customs warehouses shall not amount to either the supply of goods or supply of services. Adding value added is included in calculating GST and the buyer is responsible for establishing a link between the first contracted price of the goods and the last transaction.
Provision of intermediary services. Place of supply provisions are different for intermediary services where the place of supply is the location of the supplier. In an advance ruling sought by Toshniwal Brothers, agents provided intermediary services including identifying prospective customers of products of their foreign principal. In another advance ruling sought by Sabre Travel Network India, the applicant was finding subscribers for a foreign software company. Both applicants were acting as intermediaries for foreign companies, and such agents or intermediaries have to charge GST on commissions or fees charged to foreign companies.
Ocean freight. Taxability of ocean freight has been the matter of dispute in India for some time now. Importers are required to pay 5% of IGST on ocean freight services under the reverse charge mechanism. The importer also pays customs duty on the cost, insurance, and freight (CIF) value of the product being imported. This leads to double tax on the amount of ocean freight. In an advance ruling sought by Bahl Paper Mills, the government stated that if importers have already paid IGST on the CIF value of goods imported, they are still required to pay IGST on ocean freight.
Demurrage fees on containers. Charges for cargo storage within port premises, known as demurrage, are subject to GST.
Acquisitions by foreign companies. The transfer of business assets such as real estate, debts and fixed assets is considered to be a supply of goods and subject to GST. The transfer of goodwill that is a trademark or brand name is considered as the supply of services subject to GST, but the transfer of a business as a going concern is considered as neither a supply of goods nor supply of service, and GST is not levied.
Disbursement of net foreign loans. The disbursement of a loan and associated processing and advisory fees are separate transactions, even if it is the net amount that is disbursed by the foreign company. Processing fees charged by foreign banks are the costs incurred by the bank in processing the service request of the applicant, and this is an import of services. The applicant is required to pay GST. Advisory services are dealt with similarly.
In all cases an advance ruling should be sought to avoid any later legal action by the government.
Rajesh Kumar is a senior partner and Abhishek Hans is a partner at India Law Offices.
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