Budget 2024 Updates

TPO gets powers to deal with domestic transactionsOne more Vivad Se Vishwas Scheme; Date to be notifiedNo deduction u/s 37 for settlement amount if paid for violation of any lawFM proposes to lessen tedium of TDS; reduces rates in many casesFM overhauls capital gains regime; to come into play from todayFM hikes exemption limit for long-term capital gain to Rs 1.25 lakh + hikes tax rate to 12.5% on specified financial assetsTourism: Temple corridors to be developed in BiharCGST - Finance Bill proposes to amend Sec 9 to take ENA out of purview of GST + inserts Sec 11A to regularise non-levy of tax on general practice in tradeCGST - Sub-sections to be inserted in Act to relax time-limit to avail ITC u/s 16(4) + New Sec 74A proposed to provide for common time limit for demand notices in fraud cases3.4% of GDP allocated as Capital expenditure to support infra sectorCGST - Proviso to be inserted in Sec 30(2) to provide for enabling conditions for revocation of registration + Amendment in Sec 39 to mandate return filing by TDS deductors even if there is no deduction in a particular monthIGST - Amendment proposed to prohibit refund of unutilised ITC on zero-rated supplyIncome tax - Finance bill revamps re-assessment regime againCustoms - Finance Bill proposes to amend Sec 28DA for acceptance of different types of proof of origin under FTAsFM hikes standard deduction to Rs 75K for new ITR regime + revises tax rates for all income slabs + Rs 7000 Cr revenue foregoneIncome tax - Search & Seizure cases - Block assessment is backBudget withdraws 2% equalisation levyFM reduces corporate tax rate for foreign companies to 35%FM proposes vivad se vishwas scheme + hikes monetary limits for filing appealsFM proposes 20% capital gains tax on short-term assets + listed financial assets held for more than one year to be classified as long-termGovt scraps TDS on Mutual Funds + decriminalises delay in depositing TDS + rationalisation of compounding of offences + revamps reassessment periodBudget proposes comprehensive review of I-T Act, 1961 + simplifies provisions for charities and TDSFM reduces customs duty on gold and silver to 6% + Nil BCD on nickel cathodeBudget proposes to reduce BCD on mobile phone and chargers to 15% + exempts 25 minerals from customs dutyFM exempts cancer medicines from Customs duty + amends BCD for various machinesFM proposes Rs 48 lakh expenditure outlay; 4.9% fiscal deficitFM announces Rs 1 lakh crore fund for developing space economyPromotion of Tourism - Vishnupad temple and Bodh Gaya temple corridors to be supportedFM announces over Rs 11 lakh crore capital expenditure in current fiscalGovt to invest in small Nuclear energy plants in partnership with private playersCentre to ask States to lower stamp duty for women purchasers of housesIBC - More Benches of NCLT to be set up to speed up recoveryFM spikes limit of Mudra loan to Rs 20 lakhsBudget offers financial aid to labour-intensive MSMEs in manufacturing sectorGovt announces 3 crore additional houses under PM SchemeGovt to secure Rs 15K loan for AP from multilateral agenciesGovt to frame new policy for all-round development of Bihar, Jharkhand and OdishaGovt to give one-month salary to all new recruits in formal sector through EPFOGovt to promote vegetable clusters closer to urban settlementsGovt to focus on productivity of agriculture with climate-resilient seedsFM allocates Rs 2 lakh outlay for PM's five schemes for job creation and farmersFM Nirmala Sitharaman presents 7th Union Budget in ParliamentBudget 2024: FM arrives at Parliament; Speech to begin at 11AMEconomic Survey 2023-24 - from GST PerspectiveUkrainian FM goes on tour to ChinaI-T- Additions framed u/s 69A are untenable where affidavits submitted by assessee's parents to explain source of cash deposits, were discarded by AO without consideration : ITATSurvey acknowledges productivity loss due to mental health disordersI-T- Short term capital gains returned by the assessee in terms of provisions of section 50 of the Act on assets held for a period of more than 36 months be treated as long term capital gains: ITATExpenditure on social services up from 6.7% to 7.8% of GDP: SurveyI-T-Additions framed u/s 68 are upheld where assessee is unable to prove genuineness of transaction involving purchase and sale of penny stock: ITATTrade deficit contracts to USD 78 bn from USD 126 bn in 2023I-T-Re-assessment is invalidated when there is no failure on part of assessee to make full and true disclosure of facts necessary for assessment: ITATCorporate profitability has peaked to 15-yr-old high between 2020-2023: SurveyI-T- When cash generated out of sales has been credited in the books of accounts, the provisions of Sec.69A could not be invoked: ITATBudget 2024: More relief for senior citizens & individual taxpayers on card; tweaking of capital gains tax likely; steady capital expenditure to stayI-T- If any amount invested is purely a strategic investment & for purpose of commercial expediency, then AO cannot hold such investments to be for non-business purpose: ITATGoogle backpedals on plan to scrap cookies from ChromeCus - For a HNWI individual, an expensive watch of 'Rolex' make would be his personal effect but same may not be the case if the person is of mere means - Pendant studded with diamonds not liable for confiscation: HCGovt amends Recruitment Rules for Debts Recovery TribunalGST - Even if no date, time or place of hearing is indicated in the notice issued, it was the duty of assessee to file his reply to SCN, which was admittedly received - Plea regarding violation of principles of natural justice cannot be countenanced: HCAbhinav Bindra conferred with Olympic OrderGST - Mismatch between value of e-way bills generated on portal and returns filed in Form GSTR-3B - Petitioner did not provide a comprehensive explanation - To remit sum of Rs.3.50 crores within six weeks - Matter remanded: HCHackers mercilessly hack Bangladesh PM’s website along with police portalsGST - Rule 30 of Rules, 2017 - Assessing officer ought to have issued summons and obtained clarification rather than estimating the outward supply value at 110% of purchase value - Order set aside and matter remanded subject to remit of 10% disputed tax demand: HCUS law-makers call for resignation of Secret Service chief in Trump assassination caseGST - Net ITC shown incorrectly - An inadvertent error was committed and such error was rectified, albeit irregularly, however, sum recovered from petitioner's bank account - Order set aside and matter remanded: HCKarnataka IT Industries piling pressure on govt to extend working hoursGST - Since notification is declared unconstitutional, Amount of IGST paid pursuant to Entry No. 10 of Notification No. 10 of 2017 is to be refunded along with statutory interest: HCStudy says earth’s water depleting fastFDI inflows slide to USD 26.5 bn in 2024 from USD 42 bn in 2023: Economic Survey
 
Impact of Northern Operating judgment - what lies in store

MAY 08, 2023

By Shivam Batra

Background

THE Apex Court in the case of C.C., C.E. & S.T. Bangalore v. Northern Operating Systems (P.) Ltd. 1 , ("Northern Operating"), while construing a contract for secondment, upheld the demand for service tax on the supply of manpower by a foreign company to its Indian affiliate. This judgement of Supreme Court has been the talk of the town for global business involved in the practice of secondment of employees as it undisputedly has the potential to re-open the pandoras box of Service tax or GST issues on secondment of employees.

It is pertinent to note that post this judgement of Supreme Court, Directorate General of GST Intelligence (DGGI) has issued notices contending the taxability of secondment, classifying it as manpower supply.

This article intends to analyse the Supreme Court's judgement in Northern Operating case with the aim to distinguish the Northern Operating Judgement on facts. The analyses would further provide a way forward to the businesses involved in practice of secondment.

Introduction

Secondment is an agreement between two businesses to send a worker from one to the other under pre-determined terms and circumstances. An employee from a foreign company might be transferred to an Indian company, or vice versa, in a normal secondment situation. Through secondments, multinational corporations frequently share their talent pool across borders and countries. This helps the group to comprehend cultural variations and allows the affiliates to benefit from the parent or group company's experience. Additionally, it offers a chance to improve the bonds between the members of the group.

Under GST, Section 7 of CGST Act read with Entry 1 of Schedule III of the CGST Act, provides that services provided by an employee to the employer in the course of or in relation to his employment is treated neither as supply of goods or supply of services. The issue that arises for consideration is whether the expatriates have an employment relationship with the Indian affiliate. If it is determined that the expatriates have an employment relationship with the Querist, the same will be covered under Entry 1 of Schedule III and no GST is payable on the same. Same was the view of Hon'ble CESTAT (Customs, Excise & Service Tax Appellate Tribunal) that there exists no supply of manpower if a seconded employee and the host establish an employer-employee relationship during the secondment.

On the contrary, Supreme Court in Northern Operating Case observed that the secondee would continue to be employed by the original employer, i.e., the foreign company. The Court, further, noticed that the terms of employment were in accord with the policy of the foreign company. T he Supreme Court observed that while determining whether a contract is a contract of service, there is no one single determinative factor or test. Every case has to be examined in the context of its facts. Each case is to be determined as per the agreement in that case to determine if any services are being provided by the overseas entity to the Indian entity.

Analysis

In the Northern Operating Case, there was a master service agreement between the Indian entity and the overseas entity whereby the Indian entity was to provide general back office and operational support to the overseas entity. Further, the whole of the salary to the seconded employees was paid by the overseas company which was later reimbursed by the Indian entity to the overseas entity. Lastly, one of determinative factors in Northern Operating Case was the retention of the payroll by the foreign company. Hence, this part is distinguishable, if it is established that expatriates during their tenure of secondment work solely for the Indian entity and are not related to the overseas entity. This can be further established if the Indian entity enter into employment agreements with each expatriate and bear all the costs and expenses in relation to the employment agreements.

It is pertinent that the Indian entity becomes the employer of the expatriates for their tenure as seconded employee. In furtherance to this, the expatriates must function solely under the control, direction, and supervision of the Indian entity and the overseas entity is not concerned with the deliverables of the seconded employees. The agreement needs to be drafted in such a way where the salary is offered and decided by the Indian entity as per Indian entities policies. This would make the Indian Entity, the recipient, and the service provider will be the expatriate and not the overseas entity, hence the supply of service will be between the Indian entity and expatriates, on which GST is not attracted.

Reliance in this regard should be placed on the decision of Hon'ble Karnataka High Court in Flipkart Internet Private Ltd. v. DCIT (International Taxation) 2, wherein, while adjudicating on the eligibility of Income Tax on Secondment Agreements, Court held that the mere payment by the overseas entity to the seconded employees would not alter the relationship between the Indian entity and the seconded employees as the Indian entity pays the overseas entity for the payments made to the seconded employees by way of reimbursement.

Further, Hon'ble CESTAT in Franco Indian Pharmaceutical (P.) Ltd. v. Commissioner of Service-Tax, Mumbai 3, held that deputation of employees and acceptance thereto by an employee amount to 'joint employment' of the employee with many employers; hence, such a deputation of employees would not amount to a service. It was further held that in the absence of a mark-up on reimbursement, the payments received against debit notes by one employer-company upon the other employer-companies, will not amount to any consideration for service, but will merely represent a reimbursement.

Will Northern Operating Have Retrospective Effect?

As per Section 13(1) of the CGST Act, the liability to pay tax on services shall arise at the time of supply. The time of supply of services in cases where tax is payable under Reverse Charge Mechanism, is to be determined as per Section 13(3) of CGST Act. It is pertinent to note that Section 13(3) does not contemplate the date of a judgement as the time of supply. The Supreme Court, in P.V. George v. State of Kerala 4 , observed that law declared by a court will have a retrospective effect, if not otherwise stated to be so specifically. In Northern Operating, it was nowhere stated by the Supreme Court that the ruling was to apply prospectively. Therefore, the judgement in Northern Operating will apply retrospectively.

Further, a judgement of the Supreme Court only declares the law and does not legislate the law. Therefore, it cannot be said that the liability to pay tax arises on the day when the judgement in Northern Operating was delivered.

Conclusion

The judgement of Northern Operating Case unsettles the settled position of law on the issue of taxability of reimbursements in case of secondment of employees. However, it can be safely concluded that this judgement can be distinguished based on differences in facts. The effect of Northern Operating judgement is only restricted wherein the Indian entity was not 'real' employer of seconded employees with the right to terminate and control the terms of employment. Secondly, the judgement is restricted wherein the purpose of secondment as laid down in the contract was for the performance of specialized functions.

[The author is pursuing B.A. LLB from Symbiosis Law School, NOIDA and the views expressed are strictly personal.]

1C.C., C.E. & S.T. Bangalore v. Northern Operating Systems (P.) Ltd., 2022-TIOL-48-SC-ST-LB

2 Flipkart Internet Private Ltd. v. DCIT (International Taxation), 2022-TII-14-HC-KAR-INTL

3 Franco Indian Pharmaceutical (P.) Ltd. v. Commissioner of Service-Tax, Mumbai, - 2016-TIOL-2371-CESTAT-MUM.

4P.V. George v. State of Kerala, (2007) 3 SCC 557

 

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