| Jul-24-2021

India INC At War Against COVID-19 Amidst Uncertainty Over GST Credits

1.Introduction

COVID-19 pandemic has hit everyone hard. The magnitude of this pandemic can be ascertained from the fact that even superpowers appear to be helpless against this invisible enemy. Realizing the gravity of the situation India INC/Corporates/Employers have wholeheartedly contributed to this noble cause and partnered with governments to contain the spread of the pandemic. Solely due to joint efforts of Governments, Corporates and Citizens our country has managed to sail through 2^nd wave of COVID-19(COVID). 

In this write-up, the paper writer delved into various GST complications likely to be faced by corporates on COVID related expenditures. For the sake of convenience, this discussion is divided into two (2) parts viz. ITC issues on COVID related to employee spend followed by ITC issues on COVID related Corporate Social Responsibility (CSR) expenditures.

2 ITC issues on COVID-related employee spends

2.1 Illustrative list of employee spends

In a fight against pandemic corporates might have incurred one or more of the following employee spends:

1. Free/Concessional Vaccination of Employees
2. Free/Concessional distribution of Mask, Sanitisers, Gloves. Personal Protective Equipment (PPE), COVID medicines etc.
3. Expenses on employee pick up and drop
4. In house serving of food for employees
5. Accommodation to employees within/near the business premises (transit house)
6. Expenditure to maintain the mental health of employees
7. Supplying medical equipment’s (e.g. Oxygen concentrators, Ventilators etc) to hospitals in lieu of free/concessional/priority healthcare facilities to their employees.
8. Expenses incurred on creating space/infrastructure for Work From Home (WFH)
9. COVID care (Medical) Insurance for employees

And many more …

Most of the above goods/services are subject to GST and therefore corporates must have paid a substantial amount of Input tax. The vexed issue is whether corporates can claim ITC on such inputs and inputs services?

2.2 Whether aforesaid employee spends is a supply/deemed supply?

Before we jump to the issue of eligibility of ITC on above spends it is imperative to understand whether such activities can be construed as supply in the context of GST?  Section 7(1)(c) of the CGST Act states that the expression supply includes the activities specified in Schedule I even though made or agreed to be made without a consideration (popularly called ‘deemed supply’). As per clause 2 to Schedule I, supply of goods or services or both between related persons when made in the course or furtherance of business is a deemed supply. Further explanation to Section 15 of the CGST Act specifies that employer and employees are deemed to be ‘related persons’.

The next question that needs to be answered here is whether the aforesaid activities are rendered in the course or furtherance of business?  In the majority of cases, corporates may not be engaged in the healthcare business and therefore not registered with Food and Drug Administration (FDA) authorities. Further medical supply is highly regulated. In the opinion of the paper writer, such corporates at the most can be construed as a facilitator for arranging aforesaid activities but no way it can be ever considered that aforesaid activities are incidental or ancillary to their main business activity of such corporates. Even it will be too far to take a view that aforesaid activities are rendered in the course of or in furtherance of their main business (non-healthcare) and therefore applicability of Schedule I may not trigger.

Assuming, without admitting, that corporates are rendering aforesaid activities in the course or furtherance of their main business, attention is drawn to Schedule III to the CGST Act. Schedule III enumerates activities or transactions which shall be treated as neither supply of goods nor supply of services. Clause 1 of Schedule III states that services by an employee to the employer in the course of or in relation to his employment will not be considered as supply of goods or services. It can be argued that aforesaid supply (either at free of cost or at concessional rate) to the employees is nothing but a consideration for services rendered by the employee to the employer.  Aforesaid facilities are provided to employees as per corporate policies decided from time to time. It is important to note that as per terms of employment and as per mandate of various employment-related legislation, corporates are under statutory as well as moral obligation to take care of their employees.

Thus, a view can be taken that aforesaid facility from corporates to their employees is not a deemed supply under GST law and therefore shall not be subject to GST. However, paper writer would like to strike a note of caution that taxability issues of employee recoveries are not new to the GST regime. Such issues were faced and then imported in GST from the service tax regime. In GST regime there are conflicting rulings from Authority for Advance Ruling (AAR) on this point and such conflicting rulings have added fuel to the fire.

2.3 ITC eligibility in general

Before we analyse the availability of ITC on aforesaid employee spends let us pause a little to comprehend an overview of ITC related provisions. Section 16(1) of the CGST Act grants the right of input tax credit (ITC) on every registered person on his inward supplies of goods or services or both provided such supply is used or intended to be used in the course or furtherance of business. However, pursuant to Section 17(5) of the Act, ITC is not available for the supplies enlisted therein, notwithstanding Section 16(1) of the Act (commonly known as ‘Blocked Credits’). However, in many instances of block credits, availment of ITC is permissible if expenses on such specified inward supply are incurred as per statutory requirements under any law for the time being in force.

Therefore, it can be inferred that ITC is available for any inward supply which is used in the course or furtherance of the business unless specifically excluded by virtue of Section 17(5) of the Act, however, there are some prescribed exceptions even from the rigours of blocked credits.

2.4 Extract of the text of Section 17(5)

Block credit provisions starts with a non-obstante clause and interpretation of this clause is likely to be a bone of contention between taxpayers and

---

[1] Reference can ne made to contrary advance rulings of Tata Motors Limited [2020 VIL 257 AAR], Beumer India Private Limited [2020 VIL 316 AAR], Caltech Polymers Pvt. Ltd. [2018 (18) G.S.T.L. 373 (App. A.A.R. - GST)], Posco India Pune Processing Center Pvt. Ltd [2019 (21) G.S.T.L. 351 (A.A.R. - GST)], and ION Trading India Private Limited [2020 (32) G.S.T.L. 608 (A.A.R. - GST - U.P.)]

authorities. Relevant statutory provisions are extracted hereunder for a better understanding of the subject at hand.

“Notwithstanding anything contained in sub-section (1) of section 16 and subsection (1) of section 18, input tax credit shall not be available [1]in respect of the following, namely:—

(a)…

(b)(iii)

Provided that the input tax credit in respect of such goods or services or both shall be available, where it is obligatory for an employer to provide the same to its employees under any law for the time being in force.

……

(g) goods or services or both used for personal consumption

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

2.5 ITC eligibility on COVID related employee spends

Moving to the next question whether ITC is available to corporates on such employee spends? For the sake of ease in the discussion, the issue of ITC eligibility on employee spends is bifurcated into two (2) different scenarios. viz. (a) when such spending was obligatory and (b) when such spending was voluntary.

2.5.1 ITC eligibility when such spending was obligatory

In exercise of the powers conferred under the Disaster Management Act, 2005 (DMA), Ministry of Home Affairs  (MHA) has issued various directions to prevent the spread of COVID and reopening the economy. The first direction in this regard was issued vide MHA order no. 40-3/2020-DM-I(A) dated 15th April 2020. Said direction specified various mandatory requirements to be followed while reopening factory/workplace/other establishments etc.  Thereafter various directions were issued from time to time to contain the spread of the pandemic. Relying on the proviso to section 17(5)(b) paper writer is of the view that there is a strong argument to claim ITC on specified employee spends carried out pursuant to aforesaid directions.

---

[1] The expression ‘in respect of the following’ used in Section 17(5) of the CGST Act restricts the scope of this section. This expression was examined by the Supreme Court in the case of State of Madras v. M/s. Swastik Tobacco Factory [AIR-1966-SC-1000]

2.5.2 ITC eligibility when such spending was voluntary

It is to be noted that in terms of Section 17 of the CGST Act, No ITC can be availed on any input/input services used for personal consumption of an employee. Unfortunately, the term ‘personal consumption’ is not defined in the GST law.  Therefore, we will have to resort to the commonly understood meaning of such a vague term.  

In the opinion of the paper writer, phrase personal consumption of employee and in the course or furtherance of business both can’t subsist together. Personal consumption is relevant only for those input and input services that are not used in the course or furtherance of business. In this regard, reference can be made to the advance ruling passed by Appellate Authority for Advance Ruling (AAAR) in the case of Ordnance Factory [2020] 117 taxmann.com 475 (AAAR-MAHARASHTRA). Authority was called upon to clarify the availability of ITC for services like maintenance, repair, sewage treatment etc. in the residential quarters of the employees of the factory. The authority came to the conclusion that services that help in maintaining the basic living standard of the employees who in turn are responsible for running the day-to-day business of the factory are in the furtherance of business.

2.6 Whether aforesaid employee spends is in the nature of perquisite?

The next issue which crops up is whether such employee spends can be called perquisite? This question is very much relevant as Central Board of Indirect Taxes & Customs (CBIC) vide its Press Release dated 10th October 2017 has clarified that perquisite given by an employer to his employees are ineligible for ITC. It is to be noted that the term perquisite is not defined in GST law. Section 17(2) of the Income Tax Act defines the term perquisite in an inclusive manner and refers to various non-cash benefits granted to employees. Reference can also be made to the observation of Odisha AAAR in National Aluminium Company Limited [2019 (22) G.S.T.L. 526 (App. A.A.R. - GST)]. 

Authority observed that perquisites are generally meant for the comfort, convenience and welfare of the employees. By no stretch of the imagination, it can be said that any of the above-listed employee spends ever fall within the commonly understood meaning of the term ‘comfort’ or ‘convenience’.

After collective reading of above-stated provisions and rulings, it can be deduced that aforesaid employee spends are indeed incurred in the course or furtherance of business and it is not for 'personal' consumption of employee, hence, there is a strong case for availment of ITC.

3 ITC on CSR expenditures

3.1 Mandatory requirements of CSR under Companies Act

Section 135 of the Companies Act, 2013, are applicable only to companies having a) a net worth of rupees five hundred crores or more or b) turnover of rupees one thousand crores or more or c) a net profit of five crores or more during any financial year.  Such specified companies shall spend in the current financial year at least 2% of their average net profits made during the three immediately preceding financial years towards CSR activities. Further, Ministry of Corporate Affairs (MCA) has issued a clarification[1], stating that the amount spent by companies towards fighting COVID pandemic would be counted towards fulfilment of their statutory obligation of CSR.

3.2 Commonly used forms of CSR during COVID Pandemic

Corporates have chosen any one of the following modes or combination thereof for carrying out CSR during COVID Pandemic:

• Cash contribution to PM-CARES Fund, Chief Minister Relief Funds etc.
• Cash contribution to approved Implementing Agency
• Distribution of COVID essentials such as Masks, Sanitizers, Personal Protective Equipment (PPE), Ventilators, drugs for COVID treatment, Oxygen concentrators etc without any consideration.

Cash donation in situation (a) is a no-brainer as it does not involve any GST component. In situation (b) Delhi AAR controversially held that where specific activities (such as construction of toilets etc) were to be carried out by implementing agency against funds granted then such arrangements would amount to supply and therefore, subject to GST.[1]   Commenting on the appropriateness of said ruling is outside the intended purpose of this write-up. Suffice to say that in case implementing agency has charged GST to corporates then a question of eligibility of ITC in the hands of corporates shall arise in such a situation and not otherwise. Situation (c) is a real test and throws interesting ITC issues as related inputs/inputs services have suffered the burden of input tax whereas the distribution of such goods/supply is made without charging any consideration/GST.

3.3 Whether CSR expenditures are in the course or furtherance of business?

The primary issue, which bothers corporates is whether procurement made for CSR is on the same footing as input and input services acquired in the course or furtherance of business? While the term ‘business’ is defined under CGST Act, the phrase ‘in the course or furtherance of business’ is not defined in the law. Considering the wide definition of the term business under the

---

[1] MCA General Circular No. 10/2020 dated 23rd March 2020 followed by General Circular No. 15/2020 dated 10th April 2020

[1] Indian Institute of Corporate Affairs, [2019] 107 taxmann.com 413

GST law even incidental/ancillary activities can be treated as in the course or furtherance of business. Therefore, prima facie input and input services procured for CSR are eligible for ITC. This view also gets support from the fact that there is no requirement to establish a direct one to one linkage in order to avail ITC.

Further as discussed above CSR activities are mandated under the Companies Act, 2013 and non-compliance of shall have [1]penal repercussions. This fact itself substantiate the claim that such expenditures are in the course or furtherance of business.

---

[1] Refer Section 135(7) of the Companies Act, 2013.

3.4 Whether goods procured from outside for the purpose of CSR is a deemed supply?

As a continuation of our discussion in Para 2.2 above let us examine whether goods procured from outside (third party vendors) for the purpose of CSR is a deemed supply? As per clause 1 to schedule I, permanent transfer or disposal of business assets where input tax credit has been availed on such assets is a deemed supply even though made without consideration.

It is to be noted that to qualify as deemed supply, such activities should fulfil the below-mentioned three (3) cumulative conditions:

1.There should be permanent disposal or  transfer of goods

2. Such disposal or transfer should be of business assets

3 ITC should have been claimed on such transferred business assets

In the opinion of the paper writer condition #1 and 3 are fully satisfied when goods are procured from outside for the purpose of CSR and distributed without consideration A moot question that pops up is whether such goods can be called ‘business assets’? Term business asset is not defined in GST Law. An Accountant understanding suggests that transactions captured in the assets side of the balance sheet can be called business assets.  In the given case since procurement is specifically made for CSR, said procurement is directly debited to CSR expenditure account (Revenue Expenditure) in the Profit and Loss account and therefore such transactions never travel to assets side of the balance sheet. In the opinion of the paper writer therefore such procurement may not be strictly called business assets.  In absence of fulfilment of condition # 2 above, such CSR expenditure may not fall within the ambit of deemed supply.  This view is also affirmed by Karnataka AAAR in Page Industries Limited[1]. Authority rightly came to the conclusion that distributable promotional items supplied free of cost to franchisee are not business assets of the appellant and therefore, transfer of such promotional items may not be treated as deemed supply.

3.5 Whether own goods distributed for CSR expenditures is a deemed supply?

To continue our discussion in the immediate preceding para with slight variation, it is quite possible that corporates may supply their own manufactured goods or traded goods for the purpose of CSR. i.e such goods are not specifically procured from outside for the purpose of CSR. In such a situation such goods are earlier treated as stock in trade/finished goods in the books/balance sheet and therefore may be construed as business assets. In the given case, therefore, all 3 conditions mentioned in para 3.4 above are

[1] [2021] 123 taxmann.com 31 (AAR - KARNATAKA)]

fulfilled. Accordingly, such distribution of goods, unfortunately, may fall within the ambit of deemed supply. In such a situation corporates distributing such goods shall be required to carry out a valuation of such goods in terms of Rule 28 of CGST rules and pay applicable GST. Needless to say in such a situation ITC can also be availed.

3.6 Whether CSR expenditures are akin to disposal by way of Gifts/Samples?

Taking further the situation discussed in Para 3.4 let us test whether the distribution of goods procured from outside for the purpose of CSR can be called disposal by way of gifts or samples?  In terms of Section 17(5)(h) of the CGST Act, ITC is blocked on goods lost, stolen, destroyed, written off or disposed of by way of gift or free samples. 

The term 'Gift' has not been defined in GST laws.  let us, therefore, have a  look at the other legislations to understand the meaning of Gift. Transfer of Property Act, 1882  defines 'gift' as below:

 

"Gift is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee".

Further Hon'ble Supreme Court in the case of Sonia Bhatia v. State of UP [AIR 1981 SC 1274] has adopted the meaning of the phrase ‘Gift’ as under:

"A 'gift' is commonly defined as a voluntary transfer of property by one to another, without any consideration or compensation therefor. A 'gift' is a gratuity and an act of generosity and does not require consideration, but there can be none; if there is a consideration for the transaction, it is not a gift.

On the basis of above legal position and jurisprudence, one can conclude that only voluntary transfer tantamount to gifts. In the case of CSR, corporates incur such expenses pursuant to a statutory obligation of the Companies Act, 2013 and therefore it can’t be termed as a gift.

Moving to the next question about samples, it is to be emphasized that the term samples as commonly understood in trade parlance have intrinsic linkage to the promotion of business. On the other hand, CSR expenditures are primarily intended to comply with statutory requirements/moral obligation therefore such distribution can’t be termed as samples as well. Further goods distributed as a part of the CSR activity could not be even regarded as the goods lost, stolen, destroyed, written off or disposed of etc.

3.7 Jurisprudence on CSR

Some notable judgments of pre, as well as post-GST regime, may help us to understand eligibility of ITC on CSR at length.

3.7.1 Judgments delivered in the context of Pre-GST Regime

• Mumbai CESTAT ruling in Essel Propack Ltd. v. Commissioner of CGST [2020] 117 taxmann.com 409 (Mum. - CESTAT)

  CESTAT held that the CENVAT credit in respect of expenditure on CSR can be availed by the company which discharges CSR obligations. Hon'ble CESTAT observed that CSR is not a charity but a mandatory requirement and unless the same is to be treated as input service in respect of activities relating to business, production and sustainability of the company itself would be at stake. CESTAT further observed that unless the CSR expenditure is treated as input service in respect of activities relating to business, production and sustainability of the company itself would be at stake."

• Hon'ble High Court of Karnataka, in CCE v. Millipore India (P) Ltd. [[2011] 16 taxmann.com 363]

  Hon’ble High court has observed as under

  "... now the concept of corporate social responsibility is also relevant. It is to discharge a statutory obligation when the employer spends money to maintain their factory premises in an eco-friendly, manner, certainly, the tax paid on such services would form part of the costs of the final products. Tribunal ruled that the service tax paid in all these cases would fall within the ambit of input services and the assessee is entitled to the benefit thereof."

  This judgment was also followed in Rane TRW Steering Systems Pvt. Ltd. vs. CCE [(2010) 19 STR 251 (Tri-Chennai)]

• The Madras High Court in CCE v. Brakes India Ltd. [2019(369) ELT 577(Mad)]

  Hon’ble high court has held "When the employer spends money to maintain factory premises in an eco-friendly manner based upon the directives issued by the statutory authorities, the tax paid on such services would form part of the costs of the final product and same would fall within the ambit of input services.

• Sterlite Industries (I) Ltd. Vs Commissioner of Central Excise, Madurai, [2016 (41) S.T.R. 867 (Tri. – Chennai)]

  Hon’ble CESTAT allowed cenvat credit of service tax on expenditure connected to business activity to discharge social responsibility under Rules 2(l) and 3 of Cenvat Credit Rules, 2004.

3.7.2  Advance Ruling relevant to GST Regime

• AAR Kerala, in Polycab Wires Pvt Ltd [2019 (24) G.S.T.L. 103 (A.A.R. - GST)]

  Authority was called upon to decide whether distribution of electrical items like switches, fans, cables etc. to flood-affected people on a free basis without collecting any money is eligible for ITC? AAR has ruled that no ITC would be available for such transactions in terms of section 17(5)(h) of the CGST Act, 2017. However, ruling is conspicuously silent as to how such expenditure is construed as falling within the meaning of the term gifts.

• AAR UP in Dwarikesh Sugar Industries Ltd. [2021] 125 taxmann.com 329

  In this ruling, authority has followed the judgement of Essel propack ltd (supra) and  observed as under

  "…we are in unison with the applicant that a clear distinction needs to be drawn between goods given as 'gift' and those provided/supplied as a part of CSR activities. While the former is voluntary and occasional, the latter is obligatory and regular in nature. CSR expenses incurred by the applicant have been mandated under the Companies Act, 2013. It is the applicant's obligation to incur such expenses in order to be compliant with the law. Since CSR expenses are not incurred voluntarily, accordingly, we are of the opinion that they do not qualify as 'gifts' and therefore its credit is not restricted under section 17(5) of the CGST Act, 2017."

3.8    Sliver lining in the form of partial relief by way of reimbursement of GST

To incentive corporates to come forward in the war against COVID, recently State of Gujarat and Haryana have recently declared a benevolent scheme for a specified period to reimburse partial/full GST. State of Gujarat vide Resolution No: GST-102021-Tax-1-GST Cell dated the 1st May 2021 has agreed to reimburse/provide grant in aid in respect of IGST paid on import of specified COVID related material. State of Haryana vide notification No. 76–2021/Ext. dated 17th May 2021 has agreed to reimburse GST (including the State, Central or IGST portion) on procurement of specified COVID related material, provided such material is donated free of charge to Haryana government/entities notified in the said notification.

Eligible corporates will have to examine pros and cons before availing of such limited incentives as certainly corporates shall not be allowed to dual benefits of ITC and aforesaid reimbursements simultaneously.

3.9 Treatment of CSR Expenditure in Income Tax Act.

W.e.f 1st April 2015 an explanation has been added in Section 37(1) of the Income Tax Act to clarify from a prospective effect that any expenditure incurred by an assessee on the activities relating to corporate social responsibility referred to section 135 of the Companies Act, 2013 shall not be deemed to be an expenditure incurred by the assessee for the purpose of business or profession”. However any expenditure qualifying as CSR expenditure under provisions of section 135 of the Companies Act, 2013, which is of the nature described in Sections 30 to 36 of the Income Tax Act, 1961 shall be allowed as a deduction. To illustrate, eligible scientific research expenditure even though it is in the nature of CSR will be allowed as a deduction u/s 35.   

It is highlighted that, unlike Income Tax Act, there is no express restriction in GST law prohibiting ITC in respect of CSR expenditure.

3.10 Voluntary CSR expenditures

Interesting ITC challenges are likely to be faced in respect of following voluntary CSR expenditures:

1. ITC eligibility of CSR expenses incurred by companies who are not mandatorily required u/s. 135 of the Companies Act
2. ITC eligibility of CSR expenses incurred over and above the mandatory limit of 2%.
3. ITC eligibility of entities (e.g. individuals/firms) etc who are outside the purview of the companies act.

In respect of aforesaid CSR, benefits of mandatory CSR requirements will not be available. However, it can be argued that there is no such thing as a free lunch in this world. Cost of such voluntary CSR is also recovered from the outward supply which is anyway offered for GST and therefore there is a strong case to equate such voluntary CSR with obligatory CSR. However aforesaid argument has not tested water yet and whether this argument would stand the test of time can be ascertained only after a long legal battle.

4.Conclusion

In these difficult times, corporates are acting as an extended arm of governments and therefore it is imperative on the part of CBIC to clear the air on the availability of ITC on employees and CSR spends. The above issues if appropriately addressed, will help in the combined fight against an invisible enemy of mankind. Till the time either CBIC or High courts come to the rescue of taxpayers, corporates will have to take a practical call on such issues considering their appetite for dispute.

Considering above stated legal position, paper writer is of the opinion that ITC denial by the department on CSR expenditures/employee spends can be well-argued in the court of law by putting counter arguments of statutory and moral obligation.

At the same time taxpayers who do not want to litigate may follow a risk-free approach as under:

1. For CSR expenditures incurred pursuant to the mandate under section 135 of the companies Act:

   As discussed, such companies are required to spend 2% of average net profits as CSR expenses. In case of availment of ITC, their actual expenditures would reduce to the extent of ITC availed and therefore they would be required to spend further amount to match the 2% limit. Further, this approach carries ITC litigation risk.  Corporates may therefore choose to ignore ITC and claim cum tax amount as CSR expenditure.

2. For CSR expenditures not covered under Section 135 of the companies Act & employee-related spends

   A cautious taxpayer should explore the option of availing such ITC and reversing the same immediately under protest by communicating in writing to the proper officer with a caveat seeking recredit of such ITC  in case of a positive ruling from courts of law.  Such an approach shall provide protection against lapsing of such credit pursuant to section 16(4) of the CGST Act and also provides immunity from the consequences of Interest and Penalty.

Don't lower guard, COVID pandemic not over yet

Author : Jignesh Kansara - Chartered Accountants by Profession and practise in the area of Indirect Taxation including GST.

Email: jignesh@jkaca.in

Disclaimer

The contents of this document are solely for informational purposes. It does not constitute professional advice or a formal recommendation. The presentation is made with utmost professional caution but in no manner guarantees the content for use by any person. It is suggested to go through the original statute/notification/circular/pronouncements before relying on the matter given. The presentation is meant for general guidance and no responsibility for loss arising to any person acting or refraining from acting as a result of any material contained in this presentation will be accepted by us. Professional advice recommended to be sought before any action or refrainment.