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Time of Supply under Reverse Charge Mechanism of GST

To further analyze the query, it is imperative to quote the relevant provisions under Indian Accounting Standard-37, at this juncture-
Creation of provisions in the books is a normal accounting practice and…..

Our opinion is sought keeping in view:

  • Provisions of CGST Act, 2017 read with CGST Rules, 2017
  • Indian Accounting Standard-37 “Provisions, Contingent Liabilities and Contingent Assets”

Analysis and Facts:

To further analyze the query, it is imperative to quote the relevant provisions under Indian Accounting Standard-37, at this juncture-

Creation of provisions in the books is a normal accounting practice and this is religiously followed upon at end of a financial year / period. The provisions are required to be made in accordance with the applicable IndAS. Our advice has been sought upon the reverse charge liability under GST arise on provision for expenses recognized in Books of Accounts.

As per Indian Accounting Standard 37 “Provisions, Contingent Liabilities and Contingent Assets”

A provision is a liability of uncertain timing or amount.

A liability is a present obligation of the entity arising from past events, the settlement of which is expected to result in an outflow from the entity of resources embodying economic benefits.

A provision shall be recognized when:

  1. an entity has a present obligation (legal or constructive) as a result of a past event;
  2. it is probable that an outflow of resources embodying economic benefits will be required to settle the obligation; and
  3. a reliable estimate can be made of the amount of the obligation.

If these conditions are not met, no provision shall be recognized.

As per the definition of ‘provision’ as given in IndAS 37 as stated supra it can be said that provision is made in respect of any expense (capital as well as revenue) incurred by an entity. Also, provision is recognized only in cases where the goods or services have actually been received or partially received because as per IndAS 37, ‘provision’ is to be recognized when it has a present obligation as result of past event.

Further in cases where provision is recognized and the invoice has not been raised / received by the supplier / recipient, as in situations where invoice has actually been raised and received, a ‘liability’ will be accounted for the amount of invoice and there would be no role of any estimation. Needless to mention here that for recognizing a ‘provision’ a reliable estimate is required to be made.

As regards treatment of ‘provision’ under GST law is concerned, implication upon the recipient of supply on recognizing the provision for expenses in respect of receipt of goods or services or both is explained below.

GST implications on Provision for expenses made in books of accounts in respect of receipt of goods or services or both (covered under reverse charge mechanism):

a) Payment of GST:

Under reverse charge mechanism the liability of deposition of tax is on the recipient. In this regard the payment of tax depends upon the time of supply which is determined as per Section 12 and 13 of CGST Act, 2017. The GST implications on recipient is explained below:

  1. Goods: As enumerated in Section 12(3) of CGST Act 2017, In case of supplies in respect of which tax is paid or liable to be paid on reverse charge basis, the time of supply shall be the earliest of the following dates, namely:
  1. the date of the receipt of goods; or
  2. the date of payment as entered in the books of account of the recipient or the date on which the payment is debited in his bank account, whichever is earlier; or
  3. the date immediately following thirty days from the date of issue of invoice or any other document, by whatever name called, in lieu thereof by the Supplier.

Provided that where it is not possible to determine the time of supply under clause (a) or clause (b) or clause (c), the time of supply shall be the date of entry in the books of account of the recipient of supply.

2. Services: As enumerated in Section 13(3) of CGST Act 2017, In case of supplies in respect of which tax is paid or liable to be paid on reverse charge basis, the time of supply shall be the earlier of the following dates, namely:––

    1. the date of payment as entered in the books of account of the recipient or the date on which the payment is debited in his bank account, whichever is earlier; or
    2. the date immediately following sixty days from the date of issue of invoice or any other document, by whatever name called, in lieu thereof by the supplier:

Provided that where it is not possible to determine the time of supply under clause (a) or clause (b), the time of supply shall be the date of entry in the books of account of the recipient of supply:

Provided further that in case of supply by associated enterprises, where the supplier of service is located outside India, the time of supply shall be the date of entry in the books of account of the recipient of supply or the date of payment, whichever is earlier.

b) Input Tax Credit:

ITC can be availed by recipient in regard to tax paid under reverse charge mechanism in case other conditions for availing the ITC are fulfilled.

Conclusion:

It is pertinent to note that date of Receipt of Services is deliberately omitted in Section 13(3) while deciding TOS in case of RCM of services visavis Date of Receipt of goods is the first criteria when TOS is decided in case of RCM of goods. It leads to clear understanding that as in cases where provision for services is made in books of accounts, but invoice has not been received by recipient / issued by supplier, accordingly the time of supply would not be attracted in case payment of any advance has not been made. Consequently, tax would not be required to be deposited by the recipient of supply. However, whenever payment is made to supplier or in case invoice is received and not paid within 60 days of the date of invoice, the 61st day would be regarded as time of supply and payment of tax would be required to be made accordingly.

However if the services are received and there is inordinate delay in receipt of Invoice it is advisable that the first proviso to Section 13(3) is referred to-

Provided that where it is not possible to determine the time of supply under clause (a) or clause (b), the time of supply shall be the date of entry in the books of account of the recipient of supply:

In case the recipient has recognized provision for expenses towards receipt of services in his books of accounts, the date of entry in books by the recipient would be regarded as time of supply and thus payment of tax would be required to be made by the supplier. This situation may be applicable in lesser cases and rather could be used as a tool by the Tax Department to raise demands.

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.

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