Stay Safe. Stay Healthy.

14 December 2020

AAR, Haryana rules liaison office not required to register under GST

The Authority for Advance Ruling (AAR), Haryana, in an application filed by Wilhelm Fricke SE, has ruled that a Liaison Office (LO) located in India is not required to obtain GST registration and pay GST on reimbursements received from Head Office (HO).

Facts

Wilhelm Fricke SE (the applicant) is a company incorporated in Germany, and is inter alia, engaged in the development, assembly/production and sale of agriculture machinery and agricultural machinery spare parts;
The applicant established a LO in India (with the permission of the Reserve Bank of India) which undertakes the following activities:
- Identification of vendors in India, and liaising and coordinating with them;
- Collection of price quotes from various suppliers and communicating confirmation of order;
- Preliminary quality check before shipment of goods;
- Other ancillary activities.
All the administrative expenses, including salary expenses of the Indian LO are met by the HO. No separate consideration/fee is charged from HO through any tax invoice/debit note.

Issue

Whether the reimbursement of expenses and salary paid by Wilhelm Fricke SE, Germany to the LO is to be considered as supply of services under the GST law?
Whether the LO is required to get registered under GST?

Applicant’s contentions

The LO does not charge any consideration and does not have any business activities of its own as specified by conditions imposed by RBI. In the absence of consideration, the activities of the LO cannot be treated as ‘supply’ under Section 7 of the CGST Act;
Schedule I of CGST Act states that supply of services between related parties or distinct persons as per Section 25, even without consideration, constitute a supply when made in the course or furtherance of business. However, the LO is just an extension of the German company. Therefore, they are not a distinct entity, as LO is not a separate legal entity.

Ruling

The LO does not have any other source of income, and it is solely dependent on the HO for all the expenses incurred, which are reimbursed by the HO. Therefore, the HO and LO cannot be treated as separate persons;
Since HO and Liaison Office cannot be treated as separate persons, there cannot be a flow of services between them as one cannot provide service to self;
Further, the liaison office is strictly prohibited from undertaking any activity of trading, commercial or industrial nature, or entering into any business contracts in its own name;
Therefore, the applicant is not required to get the LO registered under GST, and is not liable to pay GST on reimbursements received from the HO.

Our Comments

In the present case, Nexdigm(SKP) successfully represented its client and convinced the AAR that a LO is simply an extension of the foreign company and, therefore, it should not be required to obtain GST registration in India, as it does not carry out any business activities in India. However, given that there have been contradictory rulings on the matter (such as AAR, Karnataka in Fraunhofer-Gessellschaft), the issue of GST implications on LO persists for the industry at large.

Earlier, the GST law was amended to introduce the National Appellate AAR for giving a final ruling in case of contradictory advance rulings in different states, in case of the same entity. However, the said authority is yet to be constituted.

The government should expedite the constitution of the National Appellate AAR and also look into the possibility of empowering it to grant rulings even in cases where contradictory rulings exist for different entities. This may ensure that more number of taxpayers are eligible to approach it to obtain clarity.

DISCLAIMER
This alert contains general information which is provided on an “as is” basis without warranties of any kind, express or implied and is not intended to address any particular situation. The information contained herein may not be comprehensive and should not be construed as specific advice or opinion. This alert should not be substituted for any professional advice or service, and it should not be acted or relied upon or used as a basis for any decision or action that may affect you or your business. It is also expressly clarified that this alert is not intended to be a form of solicitation or invitation or advertisement to create any adviser-client relationship.

Whilst every effort has been made to ensure the accuracy of the information contained in this alert, the same cannot be guaranteed. We accept no liability or responsibility to any person for any loss or damage incurred by relying on the information contained in this alert.

© 2020 Nexdigm Private Limited. All rights reserved.

Unsubscribe | View in browser