Valuation under Goods and Services Tax - nirc@icai under GST- 10.06...Valuation under Goods and...

Valuation underGoods and Services Tax

By: Adv. Nikhil GuptaPh. 9891950868

[email protected]

Section 15

Adv. Nikhil Gupta (9891950868)

Section 15 (1)

˃ The value of a supply of goods or services orboth shall be the TRANSACTION VALUE, whichis the PRICE actually paid or payable for the saidsupply of goods or services or both where thesupplier and the recipient of the supply are NOTRELATED and the price is the SOLECONSIDERATION for the supply


Transaction Value

˃ “Transaction value” is not defined under the CGST Act.

˃ Under the Central Excise Act, 1944, “Transaction value”means the price actually paid or payable for the goods,when sold, and includes in addition to the amount chargedas price, any amount that the buyer is liable to pay to, oron behalf of, the assessee, by reason of, or in connectionwith the sale, whether payable at the time of sale or at anyother time including….


Pre-conditions for 15(1)

˃ SUPPLY as per Section 7˃ Free samples – Not treated as supply under GST Act

˃ PRICE˃ Only monetary consideration (Else Rules will be applicable)

˃ From the recipient or on behalf of the recipient

˃ Price should be the SOLE CONSIDERATION for the supply˃ Sole and the Only Consideration - No extra commercial

consideration

˃ UN-RELATED parties


Related Persons u/s 15

• One another’s businessesOfficers or Directors

• Legally recognized partners in the business– Firm/JV etc.Partners

• Employer and EmployeesService

• Any person directly or indirectly hold 25% ormore in both of themOwnership/Equity

• One of them directly or indirectly control the other• Both of them directly or indirectly controlled by 3rd person• Together they directly or indirectly control a 3rd person

Control

• Members of same familyFamily

• Sole Agent or Sole distributor or SoleConcessionaireOthers

Person shall be deemed to be related only if:

* Meaning of Control


Illustration-1 – Price is the SoleConsideration

˃ Mr A (Client) of Delhi asked Mr. B (Chartered Accountant) of Delhi to appearfor his matter in CESTAT at Mumbai.

˃ Situation I: Mr. B asked for Rs. 200,000 plus Taxes.

˃ Situation II: Mr. B asked for Rs. 150,000 plus Taxes. However, Mr. Bfurther asked Mr A. to arrange for the free admission of his son in theschool run by Mr. A’s wife.

˃ Valuation:˃ For Situation I: Rs. 200,000 is a valid Transaction Value˃ For Situation II: Rs 150,000 is not acceptable as valid Transaction Value

as it is not the sole and the only consideration


Illustration-2 - Price is the SoleConsideration

˃ Mr A (Client) of Delhi asked Mr. B (Chartered Accountant) of Delhi to provideconsultancy services on retainership basis.

˃ As a part of this arrangement, Mr. B is at the disposal of Mr. A for at least 2days in a month. Mr. B agreed for monthly consideration of Rs 100,000 plustaxes. Mr. A asked Mr. B to visit their UP office and arranged for his stay andtravel.˃ Situation I: Stay and Travel cost incurred by Mr. A - Rs 15,000.˃ Situation II: Stay and Travel cost incurred by Mr. B - Rs 15,000.

˃ Valuation:˃ For Situation I: Rs 100,000 – Mr. B can render his contractual services

even without travelling to UP. Travel and stay arrangement are not thepre-requisite for the services agreed by Mr. B.

˃ For Situation II: Rs 100,000 u/s 15(1) (Rs 1,15,000 u/s 15(2)(c) of theCGST Act)


Section 15 (2) – Inclusions in TV(2) The value of supply shall include:

(a) any taxes, duties, cesses, fees and charges LEVIED under any law for thetime being in force other than this Act, the State Goods and Services Tax Act,the Union Territory Goods and Services Tax Act and the Goods and ServicesTax (Compensation to States) Act, if CHARGED separately by the supplier;

Illustration

Mr. A supplied imported goods to Mr. B for Rs 1000 plus non-creditable Importduties. Invoice is created as follows:

Price - Rs 1000Add: BCD & Cess - Rs 100Add: GST@20% - Rs 220 (20% on Rs 1100 (Rs 1000+ Rs 100)

Reason: BCD etc. is levied at the time of import which Mr. A must have paid.Now A is only seeking reimbursement for these taxes.


Section 15 (2) – Inclusions in TV(b) any amount that THE SUPPLIER IS LIABLE TO PAY in relation tosuch supply BUT WHICH HAS BEEN INCURRED BY THE RECIPIENTof the supply and not included in the price actually paid or payable for thegoods or services or both

IllustrationMr. A agreed to construct a house for Mr. B for Rs 1 crore inclusive of interiordesigning services.˃ Situation I: Mr. B paid directly to the interior designer for his service – though

appointed by Mr. A˃ Situation II: Mr. B appointed his own interior designer for these services and

reduced the value of the contract of Mr. A.

For Situation I: To be added in the value – Liability of Mr. A incurred by Mr. BFor Situation II: Should not be included – If Mr. B has appointed the interiordesigner than Mr. B is liable to pay him and not Mr. A. This is a case of pricerenegotiation.


Section 15 (2) – Inclusions in TV(c) incidental expenses, including commission and packing, chargedby the supplier to the recipient of a supply, including any amountcharged for anything done by the supplier in respect of the supply ofgoods or services or both at the time of, or before delivery of the goodsor supply of the services;

˃ To overcome the dispute that whether the expenses were incurredbefore or after the completion of supply

˃ Freight, OPEs, all types of packaging charges are covered


Section 15 (2) – Inclusions in TV(d) interest or late fee or penalty for delayed payment of any consideration forany supply; and

˃ Liquidated damages for any other reason not covered – Like late supply,suspension charges etc.

˃ Employee Notice pay not covered

(e) subsidies directly linked to the price excluding subsidies provided by theCentral and State governments;

Explanation: For the purposes of this sub-section, the amount of subsidy shall beincluded in the value of supply of the supplier who receives the subsidy.

˃ E-commerce incentives to suppliers – Independent Service or For value ofGoods?

˃ Global support to Indian Subsidiary Company


Section 15(3) – Exclusion - Discounts˃ Section 15(3): The value of supply SHALL NOT INCLUDE ANY DISCOUNT

which is given:

˃ Pre-supply discount: Before or at the time of the supply if such discounthas been duly recorded in the invoice issued in respect of such supply;and

˃ Post-supply discount: After the supply has been effected, provided that:

˃ Such discount is established in terms of an agreement enteredbefore or at time of supply and specifically linked to relevant invoices;and

˃ ITC attributable to discount has been reversed by the recipient

˃ Only monetary discount is allowed – Adjustment for additionalgoods is not possible


Section 15(4) & (5) – Valuation Rules

˃ Section 15(4): Where the value of the supply of goods or services cannot bedetermined under subsection (1), the same shall be determined in suchmanner as may be prescribed.

˃ Refer Valuation Rules˃ Valuation for services - new concept

˃ Section 15(5): Notwithstanding anything contained in sub-section (1) or sub-section (4), the Value of such supplies as may be determined in such manneras may be prescribed.

˃ Like Tariff Values for readymade garments˃ GST Valuation Rules – Rule 6 and 7


Applicability of Valuation Rules

˃ Transaction Value is not available

˃ Related Party transactions

˃ Involvement of Extra Commercial Considerations

˃ Non-monetary considerations

Valuation Rules


Rule 1: Where Consideration is not wholly inmoney

Where the supply of goods or services is for a consideration not wholly inmoney, the value of the supply shall,

a) Be the Open Market value of such supply;

b) If open market value is not available, be the sum total of considerationin money and any such further amount in money as is equivalent tothe consideration not in money if such amount is known at the time ofsupply;

c) if the value of supply is not determinable under clause (a) or clause (b), bethe value of supply of goods or services or both Of Like Kind AndQuality

d) if value is not determinable under clause (a) or clause (b) or clause (c), bethe sum total of consideration in money and such further amount in moneythat is equivalent to consideration not in money as determined byapplication of rule 4 or rule 5 in that order


Meaning of few terms

˃ “open market value” of a supply of goods or services or both means the fullvalue in money, excluding the integrated tax, central tax, State tax, Unionterritory tax and the cess payable by a person in a transaction, where thesupplier and the recipient of the supply are not related and price is the soleconsideration, to obtain such supply at the same time whenthe supply being valued is made.

˃ Non-standard goods and Services – Valuation will be a challenge?

˃ “supply of goods or services or both of like kind and quality” means anyother supply of goods or services or both made under similarcircumstances [that, in respect of the characteristics, quality, quantity,functional components, materials, and reputation of the goods or services orboth first mentioned, is the same as, or closely or substantially resembles,that supply of goods or services or both].

˃ Non-standard goods and Services – Valuation will be a challenge?


Illustration - 3˃ Mr. A sold LED to Mr. B for Rs 15,000 provided Mr. B:

˃ Situation I: Will supply Radio worth of Rs 3,000˃ Mr. A or any other person never sold any such LED before in India.

˃ Situation II: Will revoke old litigation˃ Mr. A earlier in the day sold this LED for Rs 20,000

˃ Situation III: Will supply Radio worth of Rs 3,000˃ Mr. C is selling similar LED of different brand for Rs 22,000

˃ Answer:Situation I Situation II Situation III

15,000+3,000 20,000 15,000 + 3,000

Under Rule 1(b)

*Open market value is notavailable

Under Rule 1(a) – Open Marketvalue is available

Under Rule 1(b)

• If Rule 1(b) is applicablethen Rule 1(c) cannot beconsidered


Illustration - 4˃ Mr. A sold LED to Mr. B for Rs 15,000 provided Mr. B:

˃ Situation IV: Will supply Radio worth of Rs 3000˃ Mr. A sold LED 1 year ago for Rs 20,000.

˃ Situation V: Will go happy from his shop˃ Mr. C sold similar model of different brand for Rs 15,000

˃ Situation VI: Will supply Radio worth of Rs 5,000 for Rs 2,000˃ Mr. A is normally selling this LED for Rs 18,000

˃ Answer:Situation IV Situation V Situation VI

15,000 + 3,000 15,000 18,000

Under Rule 1(b)

*Open market value is notacceptable

Section 15(1) – TransactionValue

Rule 1(a) - Open Market Value


Rule 2: Transactions between Related or DistinctPersons – Except Supply of Goods through Agents

The value of the supply of goods or services or both between distinct persons asspecified in sub-section (4) and (5) of section 25 or where the supplier and recipient arerelated, other than where the supply is made through an agent, shall,-

a) Be the Open Market value of such supply;b) if open market value is not available, be the value of supply of goods or

services of like kind and quality;c) if value is not determinable under clause (a) or (b), be the value as determined by

application of rule 4 or rule 5, in that order

Provided that where GOODS are intended for further supply AS SUCH by therecipient, the value shall, at the option of the supplier, be an amount equivalent toninety percent of the price charged for the supply of goods of like kind and qualityby the recipient to his customer not being a related person.

Provided further that where the recipient is eligible for full input tax credit, the valuedeclared in the invoice shall be deemed to be the open market value of goods orservices.


Rule 3: Valuation in case of Supply ofGOODS made or received through an Agents

The value of supply of goods between the principal and his agent shall,-

(a) be the open market value of the goods being supplied, OR at the option of thesupplier, be ninety percent of the price charged for the supply of goods of like kindand quality by the recipient to his customer not being a related person, wherethe goods are intended for further supply by the said recipient;

Illustration: Where a principal supplies groundnut to his agent and the agent issupplying groundnuts of like kind and quality in subsequent supplies at a price ofRs.5000 per quintal on the day of supply. Another independent supplier is supplyinggroundnuts of like kind and quality to the said agent at the price of Rs.4550 per quintal.The value of the supply made by the principal shall be Rs.4550 per quintal orwhere he exercises the option the value shall be 90% of the Rs.5000 i.e. isRs.4500 per quintal

(b) where the value of a supply is not determinable under clause (a), the same shall bedetermined by application of rule 4 or rule 5 in that order


Rule 4: Value of supply of goods or servicesor both based on cost

Where the value of a supply of goods or services or both is notdeterminable by any of the preceding rules, the value shall be onehundred and ten percent of the cost of production or manufacture or cost ofacquisition of such goods or cost of provision of such services

˃ For Goods – ICWAI-CAS-4 is applicable on transfer of goods underExcise Law˃ Not yet prescribed under GST

˃ For Services – How to compute Cost of provision˃ CA certificate may be required


Rule 5: Residual method for determination ofvalue

Where the value of supply of goods or services or both cannot be determinedunder rules 1 to 4, the same shall be determined using REASONABLEMEANS CONSISTENT WITH THE PRINCIPLES AND GENERALPROVISIONS OF SECTION 15 and these rules.

Provided that in case of supply of SERVICES, the supplier mayopt for this rule, disregarding rule 4


Rule 6: Determination of value in respect ocertain supplies

1) Notwithstanding anything contained in these rules, the value in respect ofsupplies specified below shall, at the option of the supplier, be determined in the mannerprovided hereinafter.

2) Valuation in relation to purchase or sale of foreign currency including moneychanging:

˃ For currency exchanged to or from INR:˃ Units * (Buying /Selling rate – RBI reference rate)

˃ If RBI reference rate is not available – 1% of INR provided or receivedby the person changing the money

˃ If exchange is between two foreign currencies:˃ 1% of the lessor of two amounts the person changing the money would

have received by converting any two currencies into INR on that day as perRBI reference rate



˃ Option of paying tax in following manner:

Gross of amount of currencyexchanged

Value of Service

Upto Rs 1 lakh 1% of Gross amount subject tominimum of Rs 250

Above Rs 1 lakh and upto Rs 10 lakh Rs 1,000 + 0.5% of the gross amountof currency exchanged

Above Rs 10 lakh Rs 5,000 + 0.1% of gross amount ofcurrency exchanged

Max- Rs 60,000



3) Value in case of service of booking of Air tickets provided Air Travel Agent:

˃ Domestic Bookings – 5% of Base Fare˃ International bookings – 10% of Base Fare

* Base Fare is that part of the air fare on which commission is normally paid to theair travel agent by the airline.

4) Value of Supply of services in relation to Life Insurance Business

˃ For Endowment Policies: Gross Premium less Investment/ Saving amount (ifintimated to the policy holder at the time of supply)

˃ Single Premium annuity Policy – 10% of single premium charged from thepolicy holder

˃ Other cases- 25% of premium for First year and 12.5% of premium forsubsequent years

*Not applicable incase of Term Plans



5) For a dealer of second-hand i.e. used goods supplied as such or after minorprocessing (which does not change the nature of goods) and where no ITC hasbeen availed on purchase of such goods:

˃ Difference between the Selling Price and Purchase Price (If sold at loss then notax)

˃ Special provision for sale of repossessed goods from unregistereddefaulting borrower – 5% per quarter reduction from purchase price ofdefaulting borrower between the date of purchase and date of disposal by theBank etc.

6) The value of a token, or a voucher, or a coupon, or a stamp (other than postage stamp)which is redeemable against a supply of goods or services or both shall be equal to themoney value of the goods or services or both redeemable against such token,voucher, coupon, or stamp

7) The value of TAXABLE SERVICES provided by such class of service providers as maybe notified by the Government on the recommendations of the Council as referred to inparagraph 2 of Schedule I between distinct persons as referred to in section 25, whereinput tax credit is available, shall be deemed to be NIL


Rule 7: Pure Agent

Notwithstanding anything contained in these rules, the expenditure or costsincurred by a supplier as a pure agent of the recipient of supply shall beexcluded from the value of supply, if all the following conditions are satisfied,namely:-

(i) the supplier acts as a pure agent of the recipient of the supply, when hemakes payment to the third party on authorization by such recipient;

(ii) the payment made by the pure agent on behalf of the recipient of supply hasbeen separately indicated in the invoice issued by the pure agent to therecipient of service; and

(iii) the supplies procured by the pure agent from the third party as a pure agentof the recipient of supply are in addition to the services he supplies onhis own account.


Rule 7: Pure Agent

Explanation . - For the purposes of this rule, “pure agent” means a person who –

(a) enters into a contractual agreement with the recipient of supply to act as hispure agent to incur expenditure or costs in the course of supply of goods orservices or both;

(b) neither intends to hold nor holds any title to the goods or services or both soprocured or supplied as pure agent of the recipient of supply;

(c) does not use for his own interest such goods or services so procured; and

(d) receives only the actual amount incurred to procure such goods or services inaddition to the amount received for supply he provides on his own account


Rule 7: Pure Agent

Illustration.

Corporate services firm A is engaged to handle the legal work pertainingto the incorporation of Company B. Other than its service fees, A alsorecovers from B, registration fee and approval fee for the name ofthe company paid to Registrar of the Companies. The fees chargedby the Registrar of the companies registration and approval of the nameare compulsorily levied on B. A is merely acting as a pure agent in thepayment of those fees. Therefore, A’s recovery of such expenses is adisbursement and not part of the value of supply made by A to B.


Rule 8: Rate of Exchange of Currency

The rate of exchange for determination of value of taxable goods orservices or both shall be the applicable reference rate for thatcurrency as determined by the Reserve Bank of India on the date oftime of supply in respect of such supply in terms of section 12 or, as thecase may be, section 13 of the Act.


Rule 9: Cum-tax benefit

Where the value of supply is inclusive of integrated tax or, as the casemay be, central tax, State tax, Union territory tax, the tax amount shall bedetermined in the following manner:

Tax Amount = Tax% * Value100+Tax%

Valuation incase ofImported Goods


Valuation in case of Imports

˃ Section 5: Levy & Collection – IGST Act

(1) Subject to the provisions of sub-section (2), there shall be levied a tax called theintegrated goods and services tax on all inter-State supplies of goods or services orboth, except on the supply of alcoholic liquor for human consumption, on the valuedetermined under section 15 of the Central Goods and Services Tax Act and at suchrates, not exceeding forty per cent., as may be notified by the Government on therecommendations of the Council and collected in such manner as may be prescribedand shall be paid by the taxable person:

Provided that the integrated tax on goods imported into India shall be levied andcollected in accordance with the provisions of section 3 of the Customs TariffAct, 1975 on the value as determined under the said Act at the point when dutiesof customs are levied on the said goods under section 12 of the Customs Act,1962.

˃ Thus, IGST is applicable on all inter-state supply of goods or services or both unlessotherwise provided or specifically exempted.



˃ Under the Customs Act, 1961 – Valuation of imported goods is as per Section114 read with the Customs Valuation Rules, 2007

˃ Valuation principles

˃ Transaction Value

˃ Benchmark value˃ Valuation of identical goods˃ Valuation of Similar Goods˃ Computed Method˃ Deductive Method˃ Residual Method

˃ Certain specific additions



˃ Provisions under Customs Tariff Act

˃ Section 3(2)(7): Any article which is imported into India shall, in addition, be liableto integrated tax at such rate, not exceeding forty per cent. as is leviable undersection 5 of Integrated Goods and Services Tax Act, 2017 on a like article on itssupply in India, on the value of the imported article as determined under sub-section(8).

˃ Section 3(2)(8): Value for computation of IGST - Value as per Customs Act +BCD + Other duties.

˃ Section 3(2)(9): Any article which is imported into India shall, in addition, be liable tothe goods and services tax compensation cess at such rate, as is leviable undersection 8 of the Goods and Services Tax (Compensation to States) Cess Act, 2017on a like article on its supply in India, on the value of the imported article asdetermined under sub-section (10)

˃ Section 3(2)(10): Value for computation of GST Cess - Value as per Customs Act+ BCD + Other duties.


Chart – Structure of Computation under GST for Imports

Amt Credit Amt Refund Amt CreditA Value 100.00 100.00 100.00B BCD (A* Rate) 10% 10.00 10.00 10.00C Total (A+B) 110.00 110.00 110.00D IGST (C*Rate) 28.00% 30.80 30.80 30.80 30.80 30.80 30.80E Total (C+D) 140.80 140.80 140.80F Education Cess ( (B+D)*Rate) 2% 0.82 0.82 0.82G SHE Cess ((B+D)*Rate) 1% 0.41 0.41 0.41H Total Import Price 142.02 142.02 142.02I Less: Credits/ Refund 30.80 30.80 30.80J Cost 111.22 111.22 111.22

Service ProviderS. No Description Rates

Manufacturer Trading

* Education Cess and SHE Cess treatment is indicative only – Contradiction in IGST and Education & SHE Cess computation

Other Valuation RelatedAspects


Important Aspects

˃ No adjustment for Bad Debts – No enabling provision

˃ Adjustment for deficiency in supply or renegotiation in price are possiblethrough Credit/ Debit Notes

˃ Sale of car by Lessor after lease period – Option of Rule 6(5) is notavailable - Only for Second hand cars

˃ Free Samples/Gifts to unrelated persons – Not a supply – ITC reversal u/s17(5)

˃ One + One Offers – No issue – Normal Valuation rules


Important Aspects

˃ Defective Products: Value of normal goods cannot be a benchmark

˃ Theft – No supply


Contact Us

Adv. Nikhil Gupta

Ph.: 9891950868

Email: [email protected]

Linkedin: nikhilgupta513

Valuation under Goods and Services Tax - nirc@icai under GST- 10.06...Valuation under Goods and...

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Transcript of Valuation under Goods and Services Tax - nirc@icai under GST- 10.06...Valuation under Goods and...