Time of supply of goods and/ or services under Draft Model GST Law

Draft Model GST Law has been put on public domain on June 14, 2016, enabling the Trade and Industry to plan the transition from the existing indirect tax regime to GST regime.

GST is a destination based consumption tax levied at multiple stages of production and distribution of goods and services, with taxes on inputs credited against taxes on output. GST is going to be big game changer and under proposed GST regime, all the major taxes levied under the indirect taxation i.e. Central Excise, Service tax, VAT/CST etc., would be brought under the ambit of GST. Hence, the prevailing concepts of manufacturing of goods/ provision of services/ sale of goods would no longer be relevant as tax would be levied on ‘supply’ of goods & services and common base has to be arrived at for levy & collection of GST in all cases.

Taxable Event:

Meaning of the term ‘supply’ plays a crucial role, being the taxable event under GST. The broad contours of the term ‘supply’ as provided under Section 3 of the Draft Central GST (“CGST”)/State GST (“SGST”) Act, 2016 [also applicable for the Draft Integrated GST (“IGST”) Act, 2016 vide Section 2(f) thereof] has been defined in extensive manner to cover not only the goods & services as specified for consideration (like sale, transfer, barter, exchange etc.), but supplies as mentioned in Schedule I, even without consideration (like permanent transfer/disposal of business assets, supply of goods and/or services by a taxable person to another person taxable/ non-taxable person in the course of furtherance of business etc.).

Point of taxation (“POT”)

POT is referred to the point of time, when a transaction is to be taxed. Thus, we need to understand when liability to payCGST/SGST and IGST will arise. Let us first understand the POT under present regime of indirect taxation summarised hereunder:

Manufacturing of Goods	Incidence of Excise duty arises on manufacture/production of goods in India but liability to pay Excise duty is on accrual basis and arises at the time of removal of excisable goods from factory
Rendering of Services	Payment of tax is, broadly, earliest of following i.e. receipt of payment or issue of invoice, if invoice raised within stipulated time period otherwise, completion of service
Sale of Goods	VAT/CST, as the case may be on Intra-State or Inter-State sale of goods arises on transfer of property in goods including deemed sale in terms of Article 366(29A) of the Constitution and to be paid on accrual basis

Decoding provisions of ‘Time of supply’ under Draft Model GST Law

For determining time of supply for goods and services, separate provisions have been prescribed under Chapter-IV of Draft CGST/SGST Act, 2016, applicable to levy of IGST vide Clause 27 of Chapter-IX to Draft IGST Act, 2016.

I: Time of supply of goods

A.For normal supply: CGST/SGST and IGST on the goods shall be payable at the earliest of the following dates on which:â€‹

Goods are removed for supply to the recipient (for goods required to be removed);
Goods are made available to the recipient (for goods not required to be removed);
Invoice is issued by supplier;
Payment is received by supplier;
Recipient shows receipt of goods in his books of account (“BOA”).

For continuous supply of goods:

Situation	Time of supply
Successive statements of accounts or successive payments are involved	Date of expiry of the period to which such successive statements of accounts or successive payments relate
No successive statements of account	Date of issue of invoice (or any other document) or Date of receipt of payment	Whichever is earlier

For supply of goods under reverse charge: Time of supply shall be the earliest of the following dates of:

Receipt of goods,
Payment,
Receipt of invoice,
Debit in BOA.

Where goods (being sent or taken on approval or sale or return or similar terms) are removed before it is known whether a supply will take place: Time of supply shall be earliest of the following:

Time when it becomes known that the supply has taken place, or
Six months from date of removal.

In cases other than above: The time of supply shall be:

Where periodical return has to be filed, the date on which such return is to be filed, or
In any other case, date on which CGST/SGST and IGST is paid.

Analysis

Manifestly, taxability and collection provisions in respect of goods have been drastically changed under GST regime as compared to present scenario, which requires proper understanding and transformation for the dealers to levy GST. Further, taxable event for supply of goods shall depend on number of factors like removal date, payment date, date of receipt of goods, etc. Therefore,

Whenever supplier of goods receives advance, POT will arise;
Goods in transit also shall be considered as time of supply if they are accounted in BOA;
In case of goods are being sent or taken on approval or sale or return or similar terms before it is known whether a supply will take place, time limit for supply has been reduced from 12 to 6 months.

II: Time of supply of services

CGST/SGST and IGST on the services shall be payable at the earliest of the following:

	Situation	Time of supply
1.	Invoice issued within prescribed period	Date of issue of invoice or Receipt of payment	Whichever is earlier
2.	Invoice not issued within prescribed period	Date of completion of the provision of service or Receipt of payment	Whichever is earlier
3.	Not falling under (1) or (2) above	Date on which the recipient shows the receipt of services in his BOA

For the purpose of clarity, let us take an example where XYZ has provided taxable services on July 1, 2016 to ABC. A chart has been created with multiple combinations for easy understanding:

	Particulars	Date of completion of service	Date of Invoice	Date of receipt of payment	Date of entry in BOA of Recipient	Time of supply
I	Invoice issued within the prescribed period	July 1	July 20	August 10	July 27	July 20
II	Invoice issued within the prescribed period	July 1	July 28	July 25	July 27	July 25
III	Invoice not issued within the prescribed period	July 1	August 5	July 25	July 27	July 1
IV	Invoice not issued within the prescribed period	July 1	August 5	June 30	July 27	June 30

For continuous supply of services:

Situation	Time of supply
Where due date of payment is ascertainable from the contract	Date on which the payment is liable to be made by recipient of service, whether or not any invoice has been issued or any payment has been received by the supplier
Where due date of payment is not ascertainable from the contract	Each such time when the supplier of service- Receives the payment or Issues an invoice	Whichever is earlier
Where the payment is linked to the completion of an event	Time of completion of that event

Supply of services under reverse charge: Time of supply shall be determined in same manner as in case of goods discussed supra.
Where supply of services ceases under a contract before the completion of supply: Such services shall be deemed to have been provided at the time when the supply ceases.
In other cases: Time of supply shall be determined in same manner as in case of goods discussed supra.

Analysis

Most of the provisions in respect of supply of services have been kept similar to the provisions prevailing under the present indirect taxation regime which is governed by the Point of Taxation Rules, 2011 (“POTR”). It may be noted that, taxability of supply of services under reverse charge has been made in line with provisions applicable for associated enterprises under the present indirect taxation regime i.e. Rule 7 of POTR.

III: Change in rate of tax in respect of supply of services

Where there is a change in the effective rate of tax in respect of services, time of supply, shall be determined in the following manner:

Where taxable service has been provided before the change in effective rate of tax:

Incidence falling prior to change in effective rate of tax		Incidence falling after change in effective rate of tax		Time of supply
Completion of service	-	Invoice issued	Payment received	Date of receipt of payment or Date of issue of Invoice	Whichever is earlier
Completion of service	Invoice issued	-	Payment received	Date of issue of Invoice
Completion of service	Payment received	Invoice issued	-	Date of receipt of payment

Where taxable service has been provided after the change in effective rate of tax:

Incidence falling prior to change in effective rate of tax		Incidence falling after change in effective rate of tax		Time of supply
Invoice issued	-	Completion of service	Payment received	Date of receipt of payment
Invoice issued	Payment received	Completion of service	-	Date of receipt of payment or Date of issue of Invoice	Whichever is earlier
-	Payment received	Completion of service	Invoice issued	Date of issue of Invoice

Analysis

Provisions so prescribed above in respect of change in rate of tax in respect of supply of services are similar to the provisions of existing Rule 4 of POTR. However, the stated provisions seem to be applicable only in case of change in rate of tax for supply of services. Hence, in respect of supply of goods, it appears that scenarios of rate change will be governed by the provisions for time of supply of goods as prescribed under Section 12 of the Draft CGST/SGST Act, 2016.

Further, it seems that there are numerous parameters given under the Draft Model GST Law, for determining ‘time of supply’ for goods & services, which may be a major challenge initially for successful transition.

We are hoping that in the coming monsoon session, the GST Bill will finally see the light of the day and the Government will soon come out with much awaited GST considering the suggestion that will be provided by the Trade & Industry for suitable modification in the final GST Model Law.

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