Categories
Blog Research and Insights

Applicability of GST on gifts, rewards and recognition by Employer to Employees

The taxability and availability of Input Tax Credit on Gifts has always been a matter of discussion and confusion…..

The taxability and availability of Input Tax Credit on Gifts has always been a matter of discussion and confusion. With the implementation of GST, the term gift has become a buzzword. The gifts are provided by the company for the purpose of advancement of business or for sales promotion or as a reward and recognition. Different types of gifts like unbranded gifts, branded/customized gifts, Diwali gifts or target based rewards in lieu of discounts, laptops, motor vehicles, mobile phones etc. may be given to employees without consideration/ at concessional rate. The Legislature has included some specific provisions related to gifts under the GST regime.

To determine the taxability of gift, it is important to understand the meaning of the term ‘gift’. The expression “gift” has not been defined under the CGST Act, 2017. Accordingly, the term gift is open for interpretation. Hence to understand it one needs to refer to different provisions of CGST Act, 2017 along with The Gift Tax Act, 1958 which is stated below in this study.

Table of Contents

Query:

The subject matter under consideration is as per details mentioned below:

  • Whether GST is payable on gift /transfer of assets (like Laptops/ Mobile Phones/ Motor vehicles) to employees with consideration (at concessional rates) or without consideration.
  • Impact of Input tax credit on purchase of assets
  • GST applicability in case invoices are in the name of Employees and payment is being made directly by the Company.

Our advice has been sought keeping in view:

  • Provisions of CGST Act, 2017
  • Provisions of The Gift Tax Act, 1958
  • CGST circular no. 92/11/2019 dated. 07/03/2019.
  • Press release dated 11 July 2017 (Further, It is imperative to note that the press release does not have any legal binding before any courts, unless such clarification is supported by way of circular/notification. However, one may place reliance on the same to understand the intent of law).

Analysis and Facts:

In order to further analyze the query, it is imperative to quote the relevant provisions of law under CGST Act, 2017 and The Gift Tax Act, 1958 at this juncture

Supply of goods or services or both is taxable event in GST. GST is applicable only if there is supply of goods/services.

“As per Section 2(52) – Goods means every kind of moveble property other than money and securities but includes actionable claim, growing crops, grass and things attached to or forming part of the land which are agreed to be severed before supply or under a contract.”

“As per Section 2(102) – Service Means anything other than goods, money and securities but includes activities relating to the use of money or its conversion by cash or by any other mode, from one form, currency or denomination, to another form, currency or denomination for which a separate consideration is charged.”

As per Section 7, of CGST Act, 2017, (Scope of supply)

  1. For the purposes of this Act, the expression supply includes –
  1. all forms of supply of goods or services or both such as sale, transfer, barter, exchange, license, rental, lease or disposal made or agreed to be made for a consideration by a person in the course or furtherance of business;
  2. import of services for a consideration whether or not in the course or furtherance of business;
  3. the activities specified in Schedule I, made or agreed to be made without a consideration.

Schedule I of Section 7 of CGST Act, 2017

Activities to be treated as supply even if made without consideration:

2. Supply of goods or services or both between related persons or between distinct persons as specified in section 25, when made in the course or furtherance of business:

Provided that gifts not exceeding fifty thousand rupees in value in a financial year by an employer to an employee shall not be treated as supply of goods or services or both.

As per the Explanation to section 15 of the CGST Act, 2017-

  1. person shall be deemed to be related persons if

(iii) such persons are employer and employee;

Section 2 (xii) of The Gift Tax Act:

“Gift means the transfer by one person to another of any existing movable or immovable property made voluntarily and without consideration in money or money’s worth.” and includes the transfer or conversion of any property referred to in section 4, deemed to be a gift under that section; [Explanation.   A transfer of any building or part thereof referred to in clause (iii), clause (iiia) or clause (iiib) of section 27 of the Income-tax Act, by the person who is deemed under the said clause to be the owner thereof made voluntarily and without consideration in money or money;s worth. Shall be deemed to be a gift made by such person.

As per Section 16, of CGST Act, 2017 (Eligibility and conditions for taking input tax credit)

  1. Every registered person shall, subject to such conditions and restrictions as may be prescribed and in the manner specified in section 49, be entitled to take credit of input tax charged on any supply of goods or services or both to him which are used or intended to be used in the course or furtherance of his business and the said amount shall be credited to the electronic credit ledger of such
  2. Notwithstanding anything contained in this section, no registered person shall be entitled to the credit of any input tax in respect of any supply of goods or services or both to him unless,
  1. he is in possession of a tax invoice or debit note issued by a supplier registered under this Act, or such other tax paying documents as may be prescribed;
  2. he has received the goods or services or both
  3. subject to the provisions of section 41, the tax charged in respect of such supply has been actually paid to the Government, either in cash or through utilization of input tax credit admissible in respect of the said supply; and
  4. he has furnished the return under section 39.
  1. As per Section 17, of CGST Act, 2017 (Apportionment of credit and blocked credits)

    5. Notwithstanding anything contained in sub-section (1) of section 16 and sub- section (1) of section 18, input tax credit shall not be available in respect of the following, namely:

  2. motor vehicles for transportation of persons having approved seating capacity of not more than thirteen persons (including the driver), except when they are used for making the following taxable supplies, namely:

(A)   further supply of such motor vehicles; or

(h) goods lost, stolen, destroyed, written off or disposed of by way of gift or free samples; and

As per Section 15 of CGST Act: – (1) The value of a supply of goods or services or both shall be the transaction value, which is the price actually paid or payable for the said supply of goods or services or both where the supplier and the recipient of the supply are not related and the price is the sole consideration for the supply.

While plain reading of section 15 of CGST Act it says that valuation of goods and service are to me made as per transaction value which is the price actually paid or payable for the said supply of goods or services or both”. So in free sample, free service and Gifts no price is payable, hence there in no value as per GST law also so no GST to be collected. But section 15 is applicable only when both the parties are unrelated. CGST rule 28 deals with valuation of goods and services between related or distinct person.

CGST Rule 28: – Value of supply of goods or services or both between distinct or related persons, other than through an agent.-The value of the supply of goods or services or both between distinct persons as specified in sub-section (4) and (5) of section 25 or where the supplier and recipient are related, other than where the supply is made through an agent, shall-

  1. Be the open market value of such supply;
  2. If the open market value is not available, be the value of supply of goods or services of like kind and quality;
  3. if the value is not determinable under clause (a) or (b), be the value as determined by the application of rule 30 or rule 31, in that order:

Provided that where the goods are intended for further supply as such by the recipient, the value shall, at the option of the supplier, be an amount equivalent to ninety percent of the price charged for the supply of goods of like kind and quality by the recipient to his customer not being a related person:

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

Section 2(76)of CSGT Act, 2017  motor vehicle shall have the same meaning as assigned to it in clause (28) of section 2 of the Motor Vehicles Act, 1988;

Section 2(28) in The Motor Vehicles Act, 1988

“Motor vehicle” or “vehicle” mechanically propelled vehicle adapted for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source and includes a chassis to which a body has not been attached and a trailer; but does not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises or a vehicle having less than four wheels fitted with engine capacity of not exceeding 4[twenty-five cubic centimeters]; 1[twenty-five cubic centimeters];”

Press Release dated 11 July 2017 by the government:

It is being reported that gifts and perquisites supplied by companies to their employees will be taxed in GST. Gifts upto a value of Rs 50,000/- per year by an employer to his employee are outside the ambit of GST. However, gifts of value more than Rs 50,000/- made without consideration are subject to GST, when made in the course or furtherance of business.

Another issue is the taxation of perquisites. It is pertinent to point out here that the services by an employee to the employer in the course of or in relation to his employment are outside the scope of GST (neither supply of goods nor supply of services). It follows therefrom that supply by the employer to the employee in terms of contractual agreement entered into between the employer and the employee, will not be subjected to GST. Further, the input tax credit (ITC) scheme under GST does not allow ITC of membership of a club, health and fitness centre [section 17 (5) (b) (ii)]. It follows, therefore, that if such services are provided free of charge to all the employees by the employer then the same will not be subjected to GST, provided appropriate GST was paid when procured by the employer. The same would hold true for free housing to the employees, when the same is provided in terms of the contract between the employer and employee and is part and parcel of the cost-to-company (CTC).

Extract of CGST circular 92/11/2019 Dtd. 07/03/2019 on Free samples and gifts:

In the case of Federal Commissioner of Taxation v. McPhail [1968] 117 CLR 111 26 MARCH 1968 wherein the hon’ble court has observed that to constitute a ‘gift’, the property should be transferred voluntarily and not as a result of a contractual obligation and no advantage of material character was received by transferor. Relevant text of the judgement is reproduced as under.

‘But it is, I think, clear that to constitute a ‘gift’, it must appear that the property transferred was transferred voluntarily and not as the result of a contractual obligation to transfer it and that no advantage of a material character was received by the transferor by way of return’.

The Hon’ble Supreme Court cited the definition of ‘gift’ from Corpus Juris Secundum, Volume 38 in the case of Sonia Bhatia v. State of UP[1981] 2 SCC 585 as follows: A ‘Gift’ is commonly defined as a voluntary transfer of property by one to another, without any consideration or compensation therefore and does not require a consideration, but there can be none; if there is a consideration for the transaction it is not a gift.

Relevant Case:

In the case of Federal Commissioner of Taxation v. McPhail [1968] 117 CLR 111 26 MARCH 1968 wherein the hon’ble court has observed that to constitute a ‘gift’, the property should be transferred voluntarily and not as a result of a contractual obligation and no advantage of material character was received by transferor. Relevant text of the judgement is reproduced as under.

‘But it is, I think, clear that to constitute a ‘gift’, it must appear that the property transferred was transferred voluntarily and not as the result of a contractual obligation to transfer it and that no advantage of a material character was received by the transferor by way of return’.

The Hon’ble Supreme Court cited the definition of ‘gift’ from Corpus Juris Secundum, Volume 38 in the case of Sonia Bhatia v. State of UP[1981] 2 SCC 585 as follows: A ‘Gift’ is commonly defined as a voluntary transfer of property by one to another, without any consideration or compensation therefore and does not require a consideration, but there can be none; if there is a consideration for the transaction it is not a gift.

Extract of CGST circular 92/11/2019 Dtd. 07/03/2019 on Free samples and gifts:

  1. It is a common practice among certain sections of trade and industry, such as, pharmaceutical companies which often provide drug samples to their stockiest, dealers, medical practitioners, etc. without charging any consideration. As per sub- clause (a) of sub-section (1) of section 7 of the said Act, the expression “supply” includes all forms of supply of goods or services or both such as sale, transfer, barter, exchange, license, rental, lease or disposal made or agreed to be made for a consideration by a person in the course or furtherance of business. Therefore, the goods or services or both which are supplied free of cost (without any consideration) shall not be treated as ..supply” under GST (except in case of activities mentioned in Schedule I of the said Act). Accordingly, it is clarified that samples which are supplied free of cost, without any consideration, do not classify as “supply” under GST, except where the activity falls within the ambit of Schedule I of the said
  2. Further, clause (h) of sub-section (5) of section 17 of the said Act provides that ITC shall not be available in respect of goods lost, stolen, destroyed, written off or disposed of by way of gift or free samples. Thus, it is clarified that input tax credit shall not be available to the supplier on the inputs, input services and capital goods to the extent they are used in relation to the gifts or free samples distributed without any consideration. However, where the activity of distribution of gifts or free samples falls within the scope of “supply” on account of the provisions contained in Schedule I of the said Act, the supplier would be eligible to avail of the ITC.

Our Opinion & Comments:

1.   Whether GST is payable on gift /transfer of assets (like Laptops/ Mobile Phones/ Motor vehicles) to employees with consideration (at concessional rates) or without consideration.

The matter under consideration is that whether the goods transferred to employees with or without consideration are supply under CGST Act, 2017. The Concept of supply is defined under section 7 Scope of supply of the CGST Act, 2017. As per Section 7 (1) (a) of CGST Act, 2017, it is understood that to constitute a “supply” following elements are required to be satisfied:

  • Supply should be made in the course or furtherance of business, and
  • There should be some consideration

Now in case of gift/transfer to employees is concerned no consideration is charged hence it does not fall under the definition of supply as defined under Section 7 of the CGST Act 2017.

However if we refer to Entry Number 2 of Schedule I, gift/transfer between related persons may be treated as supply even if made without consideration. The relationship of employer & employee’s falls under the category of related parties as per CGST Act, 2017. As per the Explanation to section 15 of the CGST Act, 2017). It is important over here to refer to the Proviso of Entry No 2 of Schedule 1 which provides exemption to transfer below the value of Rs. 50,000 to an employee by an employer –

Provided that transfer of assets not exceeding fifty thousand rupees in value in a financial year by an employer to an employee shall not be treated as supply of goods or services or both.”

It is pertinent to note here that the services by an employee to an employer in the course of or in relation to his employment are outside the ambit of GST (neither supply of goods nor supply of services). It follows therefrom that supply by the employer to the employee in terms of contractual agreement entered into between the employer and the employee, will not be subjected to GST. Further, we need to analyze the gifts provided by the employer to the employee which does not form part of the employment agreement.

With regard to above complexities, the Government has come up with the press release dated 11 July 2017, wherein it has been specifically highlighted that any perquisites forming part of the

employment agreement, i.e., included in the employee’s cost-to-company (CTC) shall not be considered as supply.

In case of transfer of goods from employer to employee against consideration/ concessional consideration it is imperative to refer the definition of gift as stated under Section 2 (xii) of The Gift Tax Act and Hon’ble Supreme Court In the case of Federal Commissioner of Taxation v. McPhail [1968] 117 CLR 111 26 MARCH 1968 that a ‘gift’, it must appear that the property transferred was transferred voluntarily and not as the result of a contractual obligation to transfer it and that no advantage of a material character was received by the transferor by way of return’. Thus, it is clear that to fall in the definition of gift it is essential that no consideration is received by the transferor. From the harmonious reading of definition of gift, definition of supply as per Section 7 of CGST Act, 2017 and based on aforesaid analysis it can be inferred that transfer of goods to employees for a consideration, concessional or otherwise shall be out of the definition of gift and assuming that there is no contractual obligation then in that case such transfer shall be classified as supply. It is naturally inferred that such transfer falls in the definition of supply and hence output GST has to be charged at applicable rate.

Now once it is a supply the question is what should be the value of output supply. Since it is a supply between related parties hence reference has to be made to valuation Rule 28 of the CGST Act, 2017 i.e the open market value of such supply. It means whatever be the value at which goods are transferred is not relevant for the purpose of valuation, for charge of GST open market value is the value of taxable supply.

Now in case there is no consideration and the gift/transfer of goods is below Rs.50,000 then it shall not fall in the definition of supply as enumerated in Entry No 2 of Schedule I of CGST Act,2017 read with its proviso. Thus a gift/ transfer of goods to fall in the definition of supply between an employer and employee, it is mandatory that the value of goods which are subject matter of gifts/ transfer shall exceed Rs 50,000/- as valued according to Rule 28 of CGST Rules, 2017 and as envisaged under Entry No 2 of Schedule I of CGST Act, 2017 provided that this gift/transfer is not forming part in terms of the contract/employment agreement/ contractual obligation between the employer and employee and is not part and parcel of the cost-to-company (CTC).

In other words the gift/ transfer of goods shall not be considered as supply and no GST Output Tax is applicable, in case the gift/transfer is out of a contractual obligation of employment and is forming part of CTC.

2.   Impact of Input tax credit on purchase of assets.

The provision related to availability of ITC on gifts has been explained under section 17(5) (h) of the CGST Act, 2017.

As per first provision of section 17(5) (h) of the CGST Act, 2017, Input Tax Credit shall not be available is respect of goods lost, stolen, destroyed, written off or disposed of by way of Gift or free samples.

On Goods distributed as free sample or gifts by employer to employee not exceeding Rs 50,000/- per employee per financial year then Input Tax Credit is ineligible as per section 17(5)(h) of CGST Act. This is also clarified by CGST circular no. 92/11/2019 Dtd. 07/03/2019 clause (h) of sub-section (5) of section 17 of the said Act provides that ITC shall not be available in respect of goods lost, stolen, destroyed, written off or disposed of by way of gift or free samples. Thus, it is clarified that input tax credit shall not be available to the supplier on the inputs, input services and capital goods to the extent they are used in relation to the gifts or free samples distributed without any consideration.

Where the activity of distribution of gifts or free samples falls within the scope of “supply” on account of the provisions contained in Schedule I of the said Act, the supplier would be eligible to avail of the ITC. Further this is also clarified by CGST circular no. 92/11/2019 Dtd. 07/03/2019 where the activity of distribution of gifts or free samples falls within the scope of “supply” on account of the provisions contained in Schedule I of the said Act, the supplier would be eligible to avail of the ITC.

Now the question is if the transfer made by the employer to employees is a two-wheeler which falls under the definition of Motor vehicles as per Section 2(28) in The Motor Vehicles Act, 1988 then whether Input Tax Credit is available on its further supply. We need to refer to section 17(5)(a), of CGST Act, 2017, input tax credit shall not be available in respect of the motor vehicles for transportation of persons having approved seating capacity of not more than thirteen persons (including the driver), except when they are used for making taxable supplies, namely further supply of such motor vehicles. Thus, it is clarified that input tax credit shall be available to the employer if it supplies Motor vehicle to its employee. Again the valuation of supply has to be in terms of Rule 28 of CGST Rules 2017 that is Open Market value of such good provided that the value of transfer is in excess of Rs. 50,000 and this transfer is not forming part of the contract/employment agreement/ contractual obligation between the employer and employee and is not part and parcel of the cost-to-company (CTC).

3. GST applicability in case invoices are in the name of Employees and payment is being made directly by the Company.

In this case to determine the taxability of goods or services transferred, it is important to understand the meaning of the term ‘Goods’ & ‘Services’. The expression ‘Goods’ & ‘Services’ has been defined under the CGST Act, hence, one needs to refer to section 2 (52) & section 2(102) of The CGST Act, 2017 respectively.

“As per Section 2(52) – goods means every kind of movable property other than money and securities but includes actionable claim, growing crops, grass and things attached to or forming part of the land which are greed to be served before supply or under a contract”

“As per Section 2(102) – services means anything other than goods, money and securities but includes activities relating to the use of money or its conversion by cash or by any other mode, from one form, currency or denomination, to another form, currency or denomination for which a separate consideration is charged

From the above, it is clear that monetary payment doesn’t fall under the ambit of CGST Act, 2017 neither as goods nor as service. Further since the title of goods never came in the employer name so the question of supply and applicability of GST output tax thereon does not arise. However this issue is a matter of interpretation like in case of glass which could be defined as half empty or half full. Another interpretation of this could make this transaction fall in the definition of supply and liable for GST output tax as the real essence of this payment is Gift to employee free of cost exceeding the value of Rs. 50,000. In this scenario GST output tax shall be leviable on open market value as per Rule 28 of CGST Rules 2017. Also since the conditions of ITC claim also do not get fulfilled hence the GST ITC would not be available to be set off against Output GST liability against this supply.

For claim of ITC following conditions are required to be satisfied:

As per Section 16, of CGST Act, 2017

(2.) Notwithstanding anything contained in this section, no registered person shall be entitled to the credit of any input tax in respect of any supply of goods or services or both to him unless,

  1. he is in possession of a tax invoice or debit note issued by a supplier registered under this Act,
  2. he has received the goods or services or
  3. subject to the provisions of section 41, the tax charged in respect of such supply has been actually paid to the Government, either in cash or through utilisation of input tax credit admissible in respect of the said supply; and
  4. he has furnished the return under section

To avoid such a scenario wherein it is advisable that such payment be given to employee as Ex- Gratia/ Bonus and booked under the head salary in the books of accounts liable for TDS under Section 192 of the Act. Also such Ex-Gratia/ Bonus be made part of contractual agreement between employer and employee. In this way it cannot be defined as supply as per Section 7 of CGST Act, 2017 and thus not liable for GST output tax.

Disclaimer:

Our conclusions are based on the completeness & accuracy of the facts stated therein & assumptions, which if not entirely complete or accurate, should be communicated to us, as the inaccuracy or incompleteness could have a material impact on our conclusions. The conclusions reached & views expressed in the note are based on our understanding of the law & regulations prevailing as of the date of this note as well as our past experience with the tax and / or regulatory authorities. However, there can be no assurance that the tax authorities or regulators will concur with our views.

Legislation, its judicial interpretation & the policies of the tax and / or regulatory authorities are subject to change from time to time & these may have a bearing on the advice that we have given. Accordingly, any change or amendment in the law or relevant regulations would necessitate a review of our comments & recommendations contained in this note. Unless specifically requested, we have no responsibility to carry out any review of our comments for changes in laws or regulations occurring after the date of this note.

Without prior permission of DMCGLOBAL SERVICES LLP, the contents of this study / note may not be quoted in whole or in part or otherwise referred to in any documents. This document is for the specific purpose and we accept no responsibility or liability to any party.

Leave a Reply

Your email address will not be published. Required fields are marked *