GST Daily
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Today’s newsletter analytically summarizes the top GST stories reported at?taxmann.com.
The petitioner-gaming company was engaged in providing online gaming services. It had been served with a show cause notice under Section 74(1) alleging that the petitioner had avoided tax by misclassifying their supply as service instead of actionable claims. The petitioner filed a writ petition to challenge the show cause notice but the department opposed the petition on the ground that it was not maintainable as it was only directed against a show cause notice.
The Honorable High Court noted that the issue was no longer res-integra as it was already decided by various Courts that the said online games are game of skill and would not be covered as gaming of chance or gambling.
In view of the totality of the facts and circumstances of the case, the Court was of the view that games offered by the petitioners online had already been held to be games of skill then the issuance of the impugned show cause notice would be nothing but an abuse of the process of law. Therefore, the Court directed department to take any coercive measures to recover any amount from the petitioner and file counter affidavit to the writ petition within a period of one month.
The last couple of years, have been up-and-coming for the Indian economy. As a result, many Indian companies have not only managed to expand their businesses but have also generated inverstor's interest leading to an increased capital infusion in their businesses. As per a recent data published in a newspaper, it is revealed that around 168 companies raised over INR 3.10 lakh crores through IPOs in little over five years time period ranging from July 2017 to December 2022.
Apart from investors, these IPOs have also caught the attention of the indirect tax authorities, and they are on a spree to issue notices to companies that have raised capital in the last few years through IPOs. Before we dive deep into this to understand the reason for the issuance of such notices in entirety, it is imperative to discuss different ways through which companies generally raise capital for their business.
A company usually raises capital either through equity or debt for distinct purposes such as acquisition of assets for the business or new facilities to increase the production capacity with the intent to expand the business and create additional value for stakeholders.
Here are some of the ways in which a company raises capital through equity :
Issuance of Initial Public Offer (IPO)
An IPO is the process of going public by offering shares of a private company in the primary market for the first time. In the recent past, many Indian companies have gone public and raised capital for their business by the issuance of their IPOs.
There are different scenarios covered in the issuance of an IPO which are as follows :
Issuance of Further Public Offer (FPO)
An FPO is the process of issuance of shares by an already listed company and the same differs from an IPO as it does not include the issuance of shares to the public for the first time.
An FPO can also be issued under different scenarios (including the fresh issue of shares, an offer for sale, and a blend of fresh issue of shares and offer for sale) similar to the ones discussed above in the case of an IPO.
Right issue
Under the right issue, a company offers its existing shareholders the right to purchase additional set of securities of the company at a discounted price.
While raising the capital through the methods mentioned above, a company would be required to incur different set of?expenses such as the fees of underwriters, legal and professional fees, audit fees, advertising charges, listing charges, registrar fees, bank charges,?and other statutory expenses.
Notice issued by the authorities
The?notices?that the tax authorities have recently issued are related to the eligibility of ITC for the above-mentioned expenses incurred by the companies at the time of issuance of their IPOs.
The authorities opine that the listing of securities is equivalent to trading securities. It is imperative to note that securities trading is within the ambit of exempt supply under the existing GST legislation. Further, the Input Tax Credit (ITC) in respect of an exempt supply is also not available, and the same must be reversed.
Now, with the equating of listing of securities to trading of such securities by the authorities and considering the same as an exempt supply under GST, the authorities believe that the companies are not eligible to avail ITC in respect of expenses incurred for issuance of IPOs as the same pertains to an exempt supply under GST. Accordingly, the authorities have asked the companies to reverse such ITC, citing the said reason.
Treatment in pre-GST regime
It is essential to highlight that this is not the first time we have observed such notices being issued to companies. Similar provisions existed in the pre-GST regime as well, and the authorities had taken a parallel stand even then. However, different courts1?have repudiated the authorities' argument of restricting such ITC, and the same was allowed to the companies.
The ground which formed the basis for allowing the availing of such ITC by the courts is that companies would use the amount which was raised through IPO for different business purposes. Accordingly, such expenses can be inferred as input services used in the course or furtherance of business, and hence ITC in respect of the same is allowed.
Challenging grounds
Views similar to the ones mentioned above are currently being echoed in order to challenge the notices issued by the authorities. The?favourable orders issued in the pre-GST regime?provide the much-needed weightage to such views.
Additionally, in?recent FAQs released by the ICAI (FAQ No 259), the said issue was discussed, and it was concluded that the ITC would be eligible in respect of such IPO-related expenses as such services are used or intended to be used in the course or furtherance of business and there are no blocking provisions under section?17(5)?of the CGST Act, in respect of such expenses.2
Further, it is worth mentioning that acceptance of the authorities' argument that raising capital through IPO is equivalent to trading securities would mean that even raising the?authorised capital?would be equivalent to trading securities. This would lead to an additional reversal as the same would be classified as an exempt supply under GST. Such understanding of the GST provisions on the part of the authorities appears to be bizarre and inaccurate.
Our comments
The authority's stand that classifying the listing of securities as trading in securities seems to be a far-stretched interpretation of the term "trading in securities" mentioned in the GST legislation. The grounds cited above, including the ones cited in different case laws, conclude that the two things cannot be equated and the same appears to be more reasonable and practical.
Further, FAQs issued by the ICAI have expressed similar views. Therefore, one can interpret different scenarios as listed below :
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However, if the authorities' understanding is correct, it would certainly open a pandora's box wherein a completely different set of questions would be required to be answered, including the ones related to the categorisation of authorised capital as an exempt supply under GST. Additionally, since the issuance of IPO tantamounts to trading in securities which is an exempt supply under GST, the companies would also be required to consider 1% of such amount while computing the reversal ratio as per Rule 42/43 of CGST Rules, 2017. This would undoubtedly have an adverse impact and would lead to a substantial increase in the cost of raising capital.
Accordingly, it is the need of the hour that the government adopts a proactive approach in this case and issues the desired clarifications to resolve the said ambiguity and avoid any litigations in this matter.
That’s it from us for today! Stay Tuned for more updates from?Taxmann.com.
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