Foreign Entertainers, Hotel Events & Cross-Border Payments

A Complete Compliance Playbook on Section 194E vs 195, Expense Recognition, Advances, GST RCM and FEMA

By CA Surekha Ahuja

Why This Topic Deserves Special Attention 

Hotels, resorts, luxury venues, event companies and corporates increasingly engage foreign magicians, artists, musicians, DJs, sports personalities and performers for India-based events.

What appears to be a simple professional fee payment often turns into:

• wrong section TDS deduction,

• disallowance of expense u/s 40(a)(i),

• payer deemed assessee-in-default u/s 201,

• GST RCM omissions,

• FEMA remittance blocks by banks.

The single biggest error seen in practice:

Blindly applying Section 195 instead of Section 194E

This guidance note resolves that — conclusively and lawfully.

Core Legal Architecture: Why Section 194E Overrides Sec.195

Statutory Position

• Section 194E applies to payments to non-resident sportsmen or entertainers for performance in India.

• Section 195 is a general withholding provision for sums chargeable to tax paid to non-residents.

Interpretative Rule (Settled Law)

Specific provision overrides general provision

Section 194E is:

• a self-contained code

• contains a non-obstante mechanism through Section 115BBA

• designed specifically for entertainers & sportsmen

Result:
Once a person qualifies as an “entertainer”, Section 195 steps out completely.

Who Qualifies as an “Entertainer” (Practical Test)

An entertainer includes:

• Magicians

• Musicians / singers

• DJs / live performers

• Stage artists

• Performers at hotel events, weddings, corporate nights

Key test:
If income arises from performance before an audience in India, Section 194E applies — regardless of:

• whether payment is lump sum,

• whether performance is one-day,

• whether it is called “professional fee”.

Why Section 194E Is Payer-Friendly (and Safer Than 195)

Section 194E – Gross Basis Taxation

• Flat 20% on gross amount

• No deduction for:

  • travel,

  • accommodation,

  • props,

  • agent commission,

  • rehearsals

• No profit estimation

• No Section 195(2) application

• No Rule 37BC debate

Section 195 – Net Basis Risk

• Requires estimation of net taxable income

• Requires expense attribution

• CA assumes risk in Form 15CB

• Under-deduction → payer liability

Professional insight:

From a payer’s risk perspective, 194E is the safest withholding provision in the Act.

Advance Payments: Timing of TDS & Expense Recognition

Income-tax Law Principle

TDS is deductible:

• at the time of credit or payment, whichever is earlier

Illustration

• Feb 2026: USD 2,500 advance paid

• April 2026: USD 2,500 balance paid

✔ TDS under 194E must be deducted on BOTH payments, even though:

• performance occurs later,

• advance is refundable only on cancellation.

Accounting Treatment (Hotel Books)

• At advance stage:

  • Dr. Advance to Performer

  • Cr. Bank

• Expense recognised only post-performance

• TDS deposited immediately — no mismatch risk

Critical caution:
Failure to deduct TDS on advance = permanent disallowance even if deducted later.

Expense Allowability in Hotel Books (40(a)(i) Protection)

A hotel’s expense is allowable if:

• TDS under correct section (194E) is deducted

• Deposited within due dates

• Form 16A issued

• 27Q filed correctly

Common error:

“Since expense relates to next year, TDS can be deducted later”

Incorrect.
TDS obligation is transaction-linked, not expense-linked.

DTAA: When It Helps and When It Doesn’t

Article 17 of Most DTAAs

• Allows source country (India) to tax entertainer income

• Usually no exemption

• Reduced rate (10–15%) only if explicitly provided

Reality check:

• DTAA rarely overrides 194E

• DTAA relief is exceptional, not default

• Burden of proof lies on payer + CA

Form 15CB: Why 194E Certification Is Easier & Safer

Under 194E

CA certifies:

• Nature: Entertainer income

• Section: 194E r/w 115BBA

• Basis: Gross

• Rate: Flat

No estimation, no assumptions.

Under 195

CA must:

• estimate expenses,

• assume profit margin,

• apply DTAA,

• risk under-certification.

Professional verdict:

For events and performances, 194E is the gold-standard compliance path.

GST Reverse Charge (RCM): Parallel but Independent

Why GST Applies

• Import of services

• Artistic / performance service

• Supplier non-resident, no GST registration

Rate

• 18% IGST under RCM

Key Points

• GST payable even on advance

• Paid in cash ledger

• ITC available (if output taxable)

Important distinction:
GST compliance is independent of TDS compliance — both must be done.

FEMA Compliance: Remittance Without Red Flags

Nature

• Current account transaction

• Artistic services

Process

• Form 15CA + 15CB mandatory

• Purpose code (artistic services)

• Contract + passport copy

• No RBI approval needed under limits

Risk area:
Banks reject remittances if section mismatch (195 vs 194E) appears.

Common Mistakes That Trigger Litigation

Mistake	Consequence
Using 195 instead of 194E	Assessee-in-default
Not deducting on advance	Permanent disallowance
DTAA assumed without proof	Short deduction
GST ignored	RCM demand + interest
FEMA docs incomplete	Remittance block

Decision Matrix (Zero-Mistake Tool)

1. Is payee non-resident? → Yes

2. Is activity live performance? → Yes

3. Audience/event in India? → Yes

4. Result → Section 194E applies

5. Deduct on gross

6. GST RCM @18%

7. FEMA via 15CA/CB

No discretion. No ambiguity.

Final Professional Position

Section 194E is not an alternative to Section 195 — it replaces it.
For hotels and event businesses, it is the safest statutory harbour.

Foreign entertainers can always:

• file return,

• claim refund,

• claim DTAA relief themselves.

But the payer must prioritise certainty over optimisation.

Closing Note 

This guidance is based on statutory interpretation, consistent departmental practice, and real assessment experience. It is designed to ensure zero defaults, zero litigation, and full allowability of expenses.

GST Audit Additions Demystified

 By CA Surekha S Ahuja

Why Procedural Lapses, Reconciliation Differences & Mechanical Section 74 Allegations Collapse on Law

GST audit additions today are increasingly driven not by undisclosed supplies, but by process-centric objections, reconciliation variances, and routine invocation of penal provisions.
This note demonstrates—through statutory construction, burden of proof analysis, and settled judicial principles—that such additions do not meet the legal threshold of a valid tax demand.

I. Procedural Lapses: Why Non-Compliance Is Not a Charging Event

Statutory Framework (Foundational Law)

• Tax under GST arises only upon:

  • existence of a taxable supply (Section 7), and

  • levy under Section 9.

No provision under Chapters VIII or IX (returns, payments, procedures) creates tax liability by itself.

Core Legal Fallacy in Audit Additions

Audit objections often adopt the following flawed chain:

“Procedure breached → inference of evasion → tax demand.”

This approach is ultra vires the Act because:

• GST law does not recognise deemed evasion from procedural lapses,

• compliance provisions are facilitative, not determinative.

Judicial Discipline (Settled Principle)

Courts have consistently held that:

• Procedure is a handmaiden of justice, not its master;

• Substance prevails over form, especially in fiscal statutes.

Where tax is otherwise reflected in returns or books, demand collapses for want of jurisdiction.

Assessment-Stage Objection (Must Be Raised)

The proper officer must specifically establish:

1. What taxable supply escaped assessment,

2. How the lapse caused revenue loss,

3. Exact computation of tax short-paid.

➡ In absence of these findings, the addition is void ab initio.

II. Reconciliation Differences: Why Accounting Variance Is Not Evidence of Tax Evasion

Nature of Reconciliations under GST

Reconciliation differences commonly arise due to:

• timing differences,

• accounting vs return architecture,

• credit notes, reversals, adjustments,

• system-driven limitations of GSTR-2A/2B.

These are structural consequences, not indicators of suppression.

Critical Legal Principle

There is no statutory presumption that:

difference between books and returns equals undisclosed supply.

Reconciliation is an explanatory mechanism, not a charging tool.

Burden of Proof (Non-Negotiable Rule)

The department must independently prove:

• actual outward supply,

• consideration received,

• tax payable on such supply,

• failure to discharge such tax.

The burden never shifts merely because a difference exists.

Judicial Position

Courts have repeatedly held:

• reconciliation statements are not admissions,

• arithmetical differences require corroborative evidence,

• additions without invoice-level correlation are arbitrary.

Assessment-Stage Objection

Unless the department:

• identifies specific invoices,

• establishes supply-wise linkage,

• demonstrates consideration flow,

➡ reconciliation-based additions cannot survive law.

III. Section 74: Why Mechanical Allegations of Suppression Are Legally Unsustainable

Statutory Threshold of Section 74

Section 74 can be invoked only when all elements co-exist:

1. suppression or wilful misstatement,

2. intent to evade tax,

3. direct nexus between intent and tax loss.

Intent is the sine qua non — and intent cannot be presumed.

What Cannot Constitute Suppression (As per Law)

• Disclosure in returns,

• Data available on GST portal,

• Audited books of account,

• Reconciliations submitted,

• Interpretational or classification disputes.

When facts are on record, suppression is legally impossible.

Judicial Reasoning

Courts have consistently ruled:

• extended limitation demands strict construction,

• penalty provisions require strict proof,

• disagreement with taxpayer’s interpretation is not fraud.

Routine invocation of Section 74 is a colourable exercise of power.

Assessment-Stage Objection

The order must specifically record:

• what fact was concealed,

• how it was concealed,

• how intent to evade is established.

➡ Absence of recorded satisfaction vitiates proceedings entirely.

Integrated Legal Impact

Where additions are founded solely on:

• procedural lapses,

• reconciliation differences,

• mechanical Section 74 allegations,

they suffer from:

• absence of charging foundation,

• failure of burden of proof,

• violation of natural justice,

• lack of jurisdiction.

Such additions are unsustainable at every appellate level.

Final Legal Conclusion

GST is a tax on supplies — not on imperfections.
It penalises evasion — not explanations.
And it demands proof — not presumptions.

Any audit addition unsupported by evidence of supply, computation of tax, and proof of intent is doomed to fail in law.

GST Assessment Additions on Place of Supply & Refunds

 By CA Surekha Ahuja

Refined Legal Objections, Determinative Arguments and Judicial Authority

GST assessment additions commonly arise from two areas:

1. Incorrect determination of Place of Supply (POS) leading to wrong classification of IGST vs CGST/SGST; and

2. Denial or reduction of refunds on procedural or computational grounds.

Both categories of additions fail where the Department departs from statutory POS rules and settled refund jurisprudence.

Place of Supply is the jurisdictional fact.
Refund is a statutory right.
Errors on either front vitiate the demand.

PART I — PLACE OF SUPPLY (POS) ADDITIONS

(IGST vs CGST/SGST disputes)

POS Must Be Determined First — Tax Type Follows Automatically

Legal Position

Under the IGST Act, the nature of supply flows exclusively from the Place of Supply as determined under Sections 10 (goods) and 12 (services).
Absent a reasoned POS determination, any conclusion on IGST or CGST/SGST is jurisdictionally defective.

Statutory Basis

• Sections 7, 8, 10 & 12 — IGST Act

• Article 265 — Constitution of India

Judicial Authority

• Mohit Minerals Pvt. Ltd. – Supreme Court
  Tax can be levied only as authorised by the charging provisions.

Wrong Tax Payment Does Not Create Tax Liability

Legal Position

GST liability does not arise from the head under which tax was paid, but from the statutory character of the supply.
Payment of IGST instead of CGST/SGST (or vice versa) is a rectifiable error, not a taxable event.

Judicial Authority

• Material Recycling Association of India – Gujarat High Court
  Wrong tax payment does not justify additional levy.

• Bharat Petroleum Corporation Ltd. – Delhi High Court
  POS governs tax character, not accounting treatment.

Billing Address or Registration Location Is Legally Irrelevant for POS

Legal Position

The IGST Act provides exhaustive and exclusive POS rules.
Billing address, invoice narration, or location of supplier cannot override statutory criteria.

• Goods → Place of delivery (Section 10)

• Services → Location of registered recipient (Section 12)

Any POS determination based on presumptions is ultra vires the Act.

Judicial Authority

• Bharat Petroleum Corporation Ltd. – Delhi High Court
  Delivery and recipient location are decisive.

Inter-State Supply Cannot Be Presumed Without Evidence of Movement

Legal Position

For goods, inter-state supply requires actual movement pursuant to the supply.
Absent documentary proof, inter-state character cannot be inferred.

Judicial Principle

• Kone Elevator India Pvt. Ltd. – Supreme Court
  Taxability must be determined from facts, not assumptions.

Resulting Legal Consequence on POS

If Place of Supply is incorrectly determined or not determined at all, the entire demand — including interest and penalty — is unsustainable in law.

PART II — REFUND & EXPORT RELATED ADDITIONS

(Section 54 — CGST Act)

Refund Is a Statutory Right, Not a Discretionary Concession

Legal Position

Once substantive conditions under Section 54 are fulfilled, refund cannot be denied for procedural irregularities.
Procedure is intended to regulate, not to defeat, substantive entitlement.

Judicial Authority

• Mangalore Chemicals & Fertilizers Ltd. – Supreme Court
  Substantive benefits cannot be denied for technical lapses.

Inverted Duty Refund Must Follow the Prescribed Formula Only

Legal Position

Rule 89(5) provides a complete and mandatory computational mechanism.
Any deviation or alternative computation by the Department is without authority of law.

Judicial Authority

• VKC Footsteps India Pvt. Ltd. – Supreme Court
  Refund computation must strictly adhere to Rule 89(5).

Export Refunds Cannot Be Denied Due to LUT or Documentation Defects

Legal Position

Exports are zero-rated supplies by statute.
Minor lapses in LUT filing or documentation do not alter the zero-rated character of the supply.

Statutory & Circular Support

• Rules 96A / 96C

• CBIC Circular No. 09/2020

Judicial Authority

• Cosmo Films Ltd. – Gujarat High Court
  Export benefits cannot be denied for procedural lapses.

Excess Refund Allegations Call for Rectification, Not Penal Action

Legal Position

Where excess refund arises from a bona fide computational error, voluntary repayment through DRC-03 suffices.
Interest and penalty are unsustainable in absence of fraud or suppression.

FINAL PRAYER

In view of:

• incorrect or absent determination of Place of Supply, and

• denial or curtailment of refunds on procedural or computational grounds contrary to settled law,

the proposed GST additions, along with consequential interest and penalty, deserve to be dropped in entirety.

CLOSING OBSERVATION

GST law mandates certainty in Place of Supply and fairness in refunds.
Departures from either cannot be sustained on assessment or in appeal.

 

 

GST Audit Defence Compendium: Place of Supply, Procedural Lapses & Refund Disputes

 Place of Supply, Procedural Lapses & Refund Disputes — A Judicially Settled, Evidence-First Framework

By CA Surekha Ahuja

“In GST, the weakest demands are not those involving tax short-payment,
but those where tax is demanded without jurisdiction, denied on procedure, or computed without statutory discipline.”

WHY THESE GST DISPUTES DOMINATE AUDIT AND LITIGATION

Despite years of GST implementation, a disproportionate volume of audit objections continue to arise from:

• Incorrect determination of place of supply

• Penal consequences for procedural and technical lapses

• Rejection or reduction of legitimate refunds and export benefits

These disputes do not arise from legislative gaps.
They arise because numerical return mismatches are examined without applying the charging framework of GST law.

GST is destination-based, intent-sensitive, and evidence-driven.
Audit objections ignoring these fundamentals rarely survive judicial scrutiny.

PLACE OF SUPPLY DISPUTES — JURISDICTION DECIDES TAX, NOT ACCOUNTING DESIGN

Where Audits Commonly Go Wrong

A recurring audit approach is to determine tax type (IGST vs CGST/SGST) based on:

• Invoice location

• Registration state

• Depot or billing office

This approach is legally flawed.

What the Law Mandates

Under the IGST Act:

• For goods, tax follows the destination under Section 10

• For services, tax follows the recipient under Section 12

Once place of supply is established, tax type becomes automatic.
There is no statutory mechanism permitting dual levy.

Judicial Position

High Courts have consistently rejected dual taxation and jurisdictional overreach.

In Bharat Petroleum Corporation Ltd. (Delhi High Court), it was held that:

• Recipient location prevails over internal supply chains

• Tax cannot be re-characterised due to logistics or ERP design

Audit reality:
Where e-way bills, transport documents, and recipient address proofs align, IGST vs CGST demands routinely fail at the first appellate stage.

OIDAR SERVICES — DESTINATION TAX, NOT FOREIGN ORIGIN

Typical Audit Allegation

Foreign digital service providers often treat supplies as exports, leading to allegations of:

• Non-payment of IGST

• Incorrect export classification

Correct Legal Interpretation

Under Section 14 of the IGST Act, OIDAR services are taxed based on:

• Location of the recipient

• Not server location, contract situs, or payment currency

If the recipient is located in India, the supply is taxable in India, and the non-resident supplier must comply through GSTR-5A.

Evidence That Decides the Case

Authorities and courts accept:

• IP address mapping

• Geo-location tools

• Payment gateway country identification

Where such records exist, OIDAR-related SCNs collapse on facts, not law.

DEEMED EXPORTS AND MERCHANT EXPORTS — SUBSTANCE PREVAILS OVER FORM

Audit Objection Pattern

Benefits are denied citing:

• Absence of LUT

• Procedural deviations

• Timing mismatches

Settled Legal Position

Notification 48/2022-CT clarifies that:

• Deemed export eligibility hinges on movement of goods and realisation of consideration

• Procedural lapses cannot defeat substantive export benefits

• ITC reversal is not automatic

Courts have repeatedly held that export incentives cannot be nullified through hyper-technical interpretation.

PROCEDURAL LAPSES — GST IS NOT A PENAL STATUTE BY DEFAULT

Delayed or Non-Filed Returns

SCNs often ignore:

• Portal failures

• Extension notifications

• Absence of revenue loss

Legally:

• Interest under Section 50 compensates delay

• Penalty requires intent

Voluntary payment through DRC-03 before SCN issuance effectively neutralises penalty exposure — a position consistently upheld by appellate authorities.

E-WAY BILL VIOLATIONS — TECHNICAL BREACHES ARE NOT TAXABLE EVENTS

Courts have decisively drawn the line between:

• Procedural irregularities, and

• Tax evasion

In Ashok Gold House (Gujarat High Court), penalties were quashed where:

• Goods were genuine

• Documentation existed

• No intent to evade tax was established

GST enforcement cannot be converted into a revenue tool for logistical imperfections.

REGISTRATION AND ANNUAL RETURN ISSUES — INTENT REMAINS DECISIVE

Delayed registration and non-filing of GSTR-9/9C are often penalised mechanically.

However:

• Section 25(3) allows retrospective registration

• Notification 30/2021-CT exempts eligible taxpayers from GSTR-9C

Where conduct is bona fide and turnover thresholds are met, penalties consistently fail judicial scrutiny.

REFUND AND EXPORT DISPUTES — REVENUE NEUTRALITY CANNOT BE IGNORED

Inverted Duty Structure Refunds

Post VKC Footsteps (Supreme Court, 2022):

• The refund formula under Rule 89(5) stands judicially settled

• Mechanical exclusion of ITC is impermissible

Any deviation is vulnerable to writ jurisdiction.

LUT and Export Procedural Deviations

Courts and CBIC circulars recognise substantial compliance:

• Delayed FIRCs

• LUT extensions

• Documentation timing gaps

If exports are completed and foreign exchange realised, refund denial is legally unsustainable.

Excess Refunds — VOLUNTARY DISCLOSURE AS A SHIELD

Where excess refund arises due to clerical or computation error:

• Section 54(6) permits recovery

• Voluntary DRC-03 disclosure neutralises interest and penalty

Litigation is avoidable where disclosure precedes detection.

HOW THESE DISPUTES ACTUALLY END — PRACTICAL AUDIT INSIGHT

From extensive audit and appellate experience:

• Place of supply disputes fail where destination evidence is clear

• Procedural SCNs fail where intent is absent

• Refund denials fail where export substance is proven

• Revenue-neutral demands do not survive judicial review

CLOSING NOTE — WHY MOST GST DISPUTES ARE AVOIDABLE

GST litigation is rarely about tax evasion.
It is almost always about misreading law in isolation from commerce.

When statutory sequencing, commercial reality, and evidence alignment are presented together, even aggressive audit objections lose force.

In GST audits, clarity resolves more disputes than confrontation.

GST Audit Defence Compendium: Valuation, Discounts, Classification & Rate Disputes

By CA Surekha Ahuja

“In GST, disputes rarely arise from short-paid tax. They arise because the law is read in isolation from commerce.”

THE CONTEXT: WHY THESE DISPUTES KEEP RECURRING

Nearly eight years into GST, audit objections persist around:

• Valuation adjustments

• Post-supply discounts

• Classification and HSN/SAC disputes

• Rate determinations and mixed supply analysis

The reason: Audits are algorithmic; GST law is transactional. Numbers are reconciled mechanically in GSTR-1/3B, but statutory interpretation, commercial reality, and evidence often take a backseat.

The outcome: Sections 73/74 additions that fail under judicial scrutiny, yet consume years of taxpayer bandwidth.

This note provides a resolution-oriented framework for Category 3 disputes, focusing on valuation, discounts, reimbursements, classification, and rate disputes, with audit triggers, statutory anchors, judicial precedents, and evidence-first strategies.

VALUATION UNDER GST: SECTION 15 IS THE STARTING POINT

Section 15 of the CGST Act provides an exhaustive code for transaction value.
Audit misstep: bypassing transaction value and directly adding amounts under Rule 27–31.

Key points:

• Transaction value is primary (Sec 15(1))

• Statutory inclusions (freight, insurance, discount reversal, etc.) apply only if conditions are met

• Related-party or cost-based valuations are exceptions (Rules 28/30)

Practical insight: Any valuation addition without first displacing the transaction value is legally unsustainable.

POST-SUPPLY DISCOUNTS: LAW, COMMERCE, AND JUDICIARY

Audit trigger:

• Credit notes issued after invoicing

• Volume or turnover rebates crystallised post-supply

• GSTR-1 vs ledger mismatches

Statutory position (Pre-Budget 2026):

• Section 15(3)(b) allows post-supply discounts if:

  1. Established in commercial practice

  2. Specifically identifiable and linked to invoice

  3. ITC is proportionately reversed

Judicial support:

• AAAR Gujarat & Maharashtra (Inox Wind Ltd.): Volume/turnover discounts integral to trade; GST cannot tax consideration never received.

Budget 2026 update:

• Removes requirement for prior agreement or invoice linkage

• Only credit note issuance with ITC reversal is required

• Clarifies legislative intent, weakening rigid audit positions

Evidence for resolution:

• Ledgers, buyer confirmations, credit/debit notes, ITC reversal proofs

Practical tip: Ensure all post-supply adjustments are reconciled with ITC reversal to preempt fresh SCNs.

REIMBURSEMENTS & PURE AGENT RECOVERIES

Audit misstep: Treat reimbursements (freight, statutory fees, third-party costs) as additional value.

Legal framework:

• Rule 33: Exclude recoveries if supplier acts as pure agent

• Conditions:

  1. Expense incurred on behalf of recipient

  2. At actuals without markup

  3. Disclosure is separate and transparent

Judicial examples:

• CESTAT Vodafone: Reimbursements not taxable

• AAR Kerala & AAAR UP: Strict proof required but allowed if documentation complete

Key principle: Dispute is evidentiary, not legal.

Evidence checklist:

• Authorization letters, separate invoices, recipient-supplier declarations

RELATED-PARTY TRANSACTIONS & OPEN MARKET VALUE

Audit assumption: Related-party relationship = automatic value adjustment.

Legal position:

• Transaction value remains primary

• OMV only applies when distortion is shown

• Cost-based valuation is a last resort (Rule 30)

Judicial insight:

• Without evidence of suppression or distortion, valuation enhancements fail.

Evidence strategy:

• Valuation declarations, comparables, cost sheets, TP study if variance <10%

FREE SUPPLIES AND EMPLOYEE GIFTS

Audit trigger: Items issued without consideration deemed taxable.

Legal clarification:

• Taxable only if in the course/furtherance of business and falls under Schedule I

• CBIC Circular 92/11/2019-GST:

  • Promotional samples exempt

  • Employee gifts ≤ ₹50,000/year exempt

Resolution: Maintain promotional policies and low-value ledgers; ITC reversal only where applicable.

CLASSIFICATION & RATE DISPUTES

Common missteps:

• Misclassification of composite/mixed supplies

• Arbitrary bifurcation of goods + service

• Improper rate application

Legal principles:

• Principal supply test: Essential character governs classification (Safari Retreats SC 2019)

• Works contracts: Predominant activity test for immovable property (CBIC Circular 105/24/2019-GST)

• Exempt vs taxable mix: ITC reversal must be proportional (Sec 17, Rules 42/43)

Evidence essentials:

• Contract terms, BOQ, site inspection reports, turnover bifurcation, GSTR-9C certifications, SEZ LUTs

Audit cannot arbitrarily tax “split” or “artificial” components — courts consistently quash such demands.

RESOLVABILITY STRATEGY (PRACTITIONER CHECKLIST)

Issue Type	Audit Weakness	Defence Strategy
Post-supply discount	Often presumed undervaluation	Credit notes + ITC reversal; ledger + buyer confirmation
Reimbursements	Misclassified as taxable	Rule 33 affidavit; distinct invoices
Related-party adjustments	Presumed OMV	TP study; cost & comparables
Free supplies	Arbitrarily taxed	Schedule I + Circular 92/11/2019-GST
Classification/rate	Artificial splitting	Principal supply; BOQ & contract analysis
Works contracts	Misclassification	Predominant activity test; site/material report
Exempt ITC	Blanket denial	Sec 17 + Rules 42/43 proportionate reversal

Key insight:

GST audit disputes collapse when law and commerce are read together, and evidence is structured.

CLOSING THOUGHT

Most disputes arise not from evasion, but from valuation misinterpretation and rigid arithmetic assumptions.

A well-prepared SCN reply does not argue figures — it disqualifies the methodology:

• Anchored in statute (Sec 15, Rules 28–33)

• Supported by binding AAAR/SC precedents

• Backed by proper evidence matrix

In GST audits, clarity and documentation resolve more cases than confrontation.

 

 

GST Reverse Charge & Supply Classification Allegations in Assessment Proceedings

 By Surekha Ahuja

A Statutory, Judicial and Evidentiary Deconstruction with Practical Resolution Framework

Why RCM & Classification Disputes Survive Assessments but Fail in Law

In GST assessment proceedings, allegations relating to Reverse Charge Mechanism (RCM) and incorrect supply classification are routinely raised not because of ambiguity in law, but due to:

• Mechanical reliance on notifications without applying Section 7

• Ignoring Schedule III exclusions

• Failure to examine supplier registration status

• Treating accounting entries as taxable supplies

• Applying RCM as a default charging section, which it is not

These disputes typically originate at the audit or scrutiny stage, mature into SCNs under Sections 73/74, and collapse at the appellate level due to lack of statutory foundation.

Reverse Charge under GST: Legal Position Settled Beyond Doubt

 Charging Structure under the CGST Act

• Section 9(1): Forward charge is the rule

• Section 9(3): Reverse charge is an exception

• Section 9(4): Limited revival, again notification-driven

RCM does not operate independently. It activates only after a transaction qualifies as “supply” under Section 7.

This sequencing is mandatory, not optional.

The Department’s Foundational Error: Skipping Section 7

Section 7 requires:

1. Supply of goods or services

2. For consideration

3. In course or furtherance of business

If any one limb fails, the transaction never enters the charging mechanism.

This is where most RCM-based SCNs fail — the department starts with the notification instead of the statute.

GTA & Legal Services: RCM Cannot Override Supplier Status

Departmental Allegation

GST payable under RCM on GTA freight or advocate fees under Notification 13/2017.

Legal Flaw

RCM is applied without determining whether the supplier is registered.

Statutory Interpretation

Notification 13/2017 applies only when the supplier falls within the notified class.
Post Notification 20/2022, GTAs can discharge tax under forward charge.

Once:

• Supplier is registered, and

• Invoice bears GSTIN,

RCM becomes legally inoperative.

Judicial Authority

KAAR Technologies – Karnataka AAR (2022)

“RCM liability cannot be imposed on the recipient where the supplier is registered and has issued a tax invoice.”

Bharti Airtel Ltd – Bombay High Court (2021)

“Tax liability cannot be artificially shifted ignoring statutory facts on record.”

Assessment Defence Principle

RCM cannot coexist with a registered supplier charging GST.

Any SCN ignoring this is ultra vires the Act.

Director Payments: Misreading of Notification 13/2017

Typical Allegation

Director-related payments taxable under RCM.

Legal Distinction Ignored by Department

• Professional services by director → taxable under RCM

• Employer–employee relationship → Schedule III

• Reimbursement of expenses → Rule 33 exclusion

Schedule III (Entry 1)

Services by employee to employer in course of employment are outside GST.

Rule 33 (Pure Agent)

Reimbursement is excluded when:

• Expense incurred on behalf of employer

• Actuals recovered

• No markup

• Separately disclosed

Judicial Position

Yaadvi Solutions – Karnataka AAR (2022)

“Reimbursement of actual expenses to a whole-time director does not constitute consideration for supply.”

CCIL India – Karnataka AAR (2022)

“RCM under Entry 2 applies only to service consideration, not to pure reimbursements.”

Why Clay Craft (Rajasthan AAR) Fails as Precedent

• Ignored employer–employee exclusion

• Contrary to Schedule III

• Not binding outside the applicant

• Effectively diluted by subsequent rulings

HO–Branch Allocations: Accounting ≠ Supply

Allegation

Inter-unit cost allocations treated as supply under Schedule I.

Legal Reality

Section 25(4) does not override Section 7.
Schedule I applies only when consideration is deemed.

Pure cost allocations:

• No consideration

• No markup

• No independent supply intention

Binding Clarification

CBIC Circular No. 11/2021

“Internal cost sharing without profit element does not constitute supply.”

Judicial Support

Summit Digital – Maharashtra AAR (2021)

“Accounting allocations cannot be elevated to taxable supplies.”

Sponsorship & Mixed Recoveries: Artificial Clubbing Is Impermissible

Departmental Practice

Entire recovery taxed as sponsorship under RCM.

Legal Position

Only the sponsorship service component qualifies.

Infrastructure, booth, logistics recoveries — when identifiable — fall under Rule 33.

Judicial Authority

GSFC – Gujarat AAR (2022)

“RCM applies only to sponsorship consideration, not to pure agent recoveries.”

Refex Industries – AAAR

“Separately identifiable components must be independently assessed.”

Burden of Proof: Section 155 Is Fatal to Weak SCNs

The department must prove:

• Existence of supply

• Consideration

• Applicability of RCM notification

• Absence of Schedule III or Rule 33 exclusion

Presumption has no place in GST taxation.

Resolution Framework for Assessment Proceedings

Effective SCN Defence Must Establish:

1. Section 7 fails → no supply

2. Notification conditions unmet → no RCM

3. Judicial consistency → no interpretational latitude

4. No suppression → penalty unsustainable

Closing Legal Position

RCM and supply-classification disputes survive only at the assessment stage, where statutory sequencing is ignored.
Once tested against:

• Section 7

• Schedule III

• Rule 33

• Binding circulars and case law

they collapse as legally unsustainable.

GST cannot be collected on assumptions, accounting entries, or retrospective reinterpretation of notifications.