JUNE 13, 2018

By Vijay Kumar

IS GST leviable on RTI application fee?

No opinion, let us get to the facts:

On 9.9.2017, one Mr. Chetan Kothari sought information from the Indian Meteorological Department on details of all warnings/red alert issued by the department, the reason of warning/red alert ex. Heavy rain, earthquake, cyclone, storm, etc, the place for which it was issued, and whether it turned to be true or false.

The Meteorological Department, Mumbai requested him on 02.11.2017 to deposit Rs. 5808 (inclusive of Rs. 886 as GST ).

The Central Information Commission in its order dated 05. 02.2018 observed,

He (the CPIO) also failed to justify the imposition of GST of Rs. 886/- along with cost of copying. Such an imposition of tax was not legally supported. Public Authority cannot quote a price for the information treating it as goods or service of sellable nature. Besides, giving information is not even service, being transparent is the inherent duty of Public Authorityand CPIO can only collect the cost of copying charges so that the government exchequer is not affected. Therefore, the demand of GST charges made by the CPIO is illegal and unreasonable .

The CIC directed the CPIO to show cause as to why maximum penalty should not be imposed upon him for not furnishing the information within prescribed timelines, rejecting the request on illegal grounds; and for demanding GST charges from the appellant for the information sought .

The CPIO submitted before the CIC:

Further, I hereby humbly want to draw your kind attention sir, this department supply the weather data on payment basis and its cost is much higher than the prescribed RTI Application fee i.e. Rs. 10/- providing data under the provisions of RTI Act may cause huge loss not only to this Department but the Government of India also, only because it is the main source of contributing fund to the Revenue of Government of India.

The scientist CPIO in all humility also submitted,

Furthermore, I would like to inform in your kind honour sir, I am in the cadre of Scientist and my area of responsibility based on Scientific Research and Analysis and hence, I am lacking knowledge in dealing legal/RTI cases therefore I may please be forgiven for the things which have unfortunately gone wrong in the course of providing information .

The CIC in its order dated 08.05.2018 observed,

The Commission holds the CPIO has illegally denied substantive part of the information and illegally attempted to charge GST on information . However, taking a lenient view, the Commission imposes a penalty of Rs 1000/- on the CPIO.

Taking notice of harassment meted out to the applicant with various kinds of demands for purpose, huge amount, GST and denial of information, the Commission directs the public authority to pay a token compensation of Rs 500/- to the appellant within 15 days.

So, the CIC has held that the demand of GST charges made by the CPIO is illegal and unreasonable.

Let us forget reason, but is it illegal and does the CIC decide whether collection of GST is legal or not?

In the booklet on "rate of GST on services" released by CBIC, Sl. No. 6 of LIST OF SERVICES AT NIL RATE reads as:

Doesn't the information provided under the ‘Right To Information Act' get covered under the above nil rate?

Not so simple!

The Government in its FAQ on ‘Government Services' clarified:

Question 1: Are all services provided by the Government or local authority exempted from payment of tax?

Answer: No, all services provided by the Government or a local authority are not exempt from tax. As for instance, services, namely,

(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 Government;

(ii) services in relation to an aircraft or a vessel, inside or outside the precincts of an airport or a port;

(iii) transport of goods or passengers; or

(iv) any service, other than services covered under (i) to (iii) above, provided to business entities

are not exempt and that these services are liable to tax.

That said, most of the services provided by the Central Government, State Government, Union Territory or local authority are exempt from tax.

But what/who is Government?

The Government FAQ clarifies that too:

Question 3: What is the meaning of ‘Government' ?

Answer: As per section 2(53) of the CGST Act, 2017, ‘Government' means the Central Government. As per clause (23) of section 3 of the General Clauses Act, 1897 the ‘Government' includes both the Central Government and any State Government. As per clause (8) of section 3 of the said Act, the ‘Central Government', in relation to anything done or to be done after the commencement of the Constitution, means the President. As per Article 53 of the Constitution, the executive power of the Union shall be vested in the President and shall be exercised by him either directly or indirectly through officers subordinate to him in accordance with the Constitution. Further, in terms of Article 77 of the Constitution, all executive actions of the Government of India shall be expressed to be taken in the name of the President. Therefore, the Central Government means the President and the officers subordinate to him while exercising the executive powers of the Union vested in the President and in the name of the President. Similarly, as per clause (60) of section 3 of the General Clauses Act,1897, the ‘State Government', as respects anything done after the commencement of the Constitution, shall be in a State the Governor, and in an Union Territory the Central Government. As per Article 154 of the Constitution, the executive power of the State shall be vested in the Governor and shall be exercised by him either directly or indirectly through officers subordinate to him in accordance with the Constitution. Further, as per article 166 of the Constitution, all executive actions of the Government of State shall be expressed to be taken in the name of Governor. Therefore, State Government means the Governor or the officers subordinate to him who exercise the executive powers of the State vested in the Governor and in the name of the Governor.

Is a PSU Government?

The FAQ clarifies that also.

Question 6: Would a statutory body, corporation or an authority constituted under an Act passed by the Parliament or any of the State Legislatures be regarded as ‘Government' or "local authority" for the purposes of the GST Acts?

Answer: A statutory body, corporation or an authority created by the Parliament or a State Legislature is neither ‘Government' nor a ‘local authority'. Such statutory bodies, corporations or authorities are normally created by the Parliament or a State Legislature in exercise of the powers conferred under article 53(3)(b) and article 154(2)(b) of the Constitution respectively. It is a settled position of law (Agarwal Vs. Hindustan Steel AIR 1970 Supreme Court 1150) that the manpower of such statutory authorities or bodies do not become officers subordinate to the President under article 53(1) of the Constitution and similarly to the Governor under article 154(1). Such a statutory body, corporation or an authority as a juridical entity is separate from the State and cannot be regarded as the Central or a State Government and also do not fall in the definition of ‘local authority'. Thus, regulatory bodies and other autonomous entities would not be regarded as the government or local authorities for the purposes of the GST Acts .

Maybe there is no GST on information provided by the Government but there could be GST on information provided by Public Authorities other than Government.

GST Council Recommendation:

One of the recommendations of the GST Council in its 25th meeting held on 18.01.2018 was;

(A) Exemptions / Changes in GST Rates / ITC Eligibility Criteria

(1) xxx

(2) To exempt supply of services by way of providing information under RTI Act, 2005 from GST.

So, the GST Council as on 18.01.2018 was of the firm opinion that services by way of providing information under RTI Act were liable to suffer GST and they wanted to exempt it. Should a service which attracts nil rate of tax be again exempted?

And has the government notified the exemption as recommended by the GST Council?

YES. The Government has by notification No. 2/2018 - Central Tax (Rate), dated 25.01.2018 amended Notification No. No.12/2017- Central Tax (Rate), by inserting Sl. No.65A as: