Sr. No. Name of Members Profession Zone
1 Franson Michael Edakulathur T.P. South
2 Prateek Kumar Agarwal CA. East
3 Deelip Vitthaldasji Zanwar S.T.P. West
4 Vijay Kumar Rara Adv. East
5 P. Masthan T.P. South
6 Dhiraj Agarwal CA East
7 Laxman Gehlot CA. Central
8 Archit Bohra Adv. Central
9 Bhoopendar P. Maheshwari CA. West
10 Satish Dattatray Kale T.P. West
11 Krunal Bhupendra Katwala CA. West
12 Balakotaiah Puttamsetty GSTP South
13 Allu Radha Krishna Adv. South
14 D. M. Bhattad T.P. South
15 Siddharth S. Surana GSTP Central
16 Balannagari Srinivasulu GSTP South
17 Devendrakumar Govindbhai Patel Adv. West
18 Jinesh S. Vanzara CA. East
19 Bapi Roy Adv. East
20 Bhadresh Shah CA. West
21 Ankit Bharat Shah Adv. West
22 Rajesh Pd Singh Adv. East
23 Krishna Kishore Valluri Adv. South
24 Chakka Venkata Subba Rao GSTP South
25 Shahabaz Mohammedrafiq Galgali Adv. South
26 Satyajit Dey Adv. East
27 Varis V. Isani Adv. West
28 Rajeev S. Joshi Adv. West
29 Mukund L. Dhunisingani Adv. West
30 Nandisha S. CA South
31 Pranjal Sudhir Waghmare CA West
32 Rakesh Kumar Sharma Adv. Central
33 Arun Dadhich CA. Central
34 K. Balasubramanian T.P. South
35 Manideep Sarma Adv. East
36 Sowdagar Khaja Reehan UZ Zama GSTP South
37 Rabindra Kumar Panigrahi Adv. East
38 Suman Kumar Prusty Adv. East
39 Dr. Narendra Kaler Adv. Central
40 Ravi Dineshkumar Desai Adv. West
41 Manan Shah Adv. West
42 Sudhesh Bordia Adv. Central
43 Dharmnath V. Avhad Adv. West
44 Anil Adarsh Jain Adv. North
45 Pitambar Panigrahi Adv. East
46 Sunil Dattatray Choramale Adv. West
47 Balamurali D. GSTP South
48 Sanjay Jawalkar Adv. West
49 R. Vivekanandan I.T.P. South
50 Roopak Agarwal CA. North
51 Umang Talati CA. West
52 Raghavendra Rao SVS Adv. South
53 Anil Kumar Adv. North
54 Suresh S. I.T.P. South
55 Navin Dokania CA. East
56 Umag Vasantlal Panchal Adv. West
57 Pawan Goyal CA. Central
58 Preetam R. Batra CA. West
59 Ram P. Poddar Adv. Central
60 Vishal Marne GSTP West
61 Ravi Madhukar Kandekar I.T.P. South
62 Chirag Modi GSTP West
63 Mohan Choudhary GSTP East
64 Vadiraj Parmali CA South
65 Nishant Modi Adv. East
66 Fenil Paresh Shah CA West
67 S. Sankar Ganesh GSTP South
68 Kota Naresh GSTP South
69 Zulfequar Amir Husain CA. West
70 Deepak Dhanuka Adv. East
71 Pratik Rajendra Shah GSTP West
72 Kapil Sanghvi CA. West
73 Jitendra Bairagi Adv. Central
74 Kundan Kumar Adv. East
75 Adilsha GSTP South
76 Syed Ismail GSTP South
77 Manjunath Kudarimati GSTP South
78 Ankit Jain Adv. North
79 Gangu Laljani Adv. West
80 Bhagat Singh Tomar CA. North
81 Darshit Naik CA. West
82 Veeral Katkoria CA. West
83 Gaurav Grover Adv. North
84 Rajkumar Almale GSTP South
85 Prasanta Kumar Panigrahi Adv. East
86 Sujay Ajgaonkar CA. West
87 Narayanan P. Potty Adv. South
88 Karthikeyan S. GSTP South
89 Swapnil Dutt Vyas Adv. Central
90 Rakesh Dhiman Adv. North
91 A. Palani GSTP South
92 Ashish Shah CA. West
93 Nimesh B. Shah Adv. North
94 Atanu Adhikari Adv North

Dear Members,

Please take notice that elections to National Executive body of AIFTP for 2020 & 2021 shall be held at Mumbai as per the schedule detailed as under:-

Schedule

Proposed Date

Date of Notice

25/10/2019

Availability of Nomination Form

11/11/2019

Last Date of Filing Nominations

02/12/2019

Scrutiny of Nomination Forms

03/12/2019

Publication Valid Nominations

05/12/2019

Withdrawal of Nominations

08/12/2019

Declaration of Final List of Candidates

08/12/2019

Date of Elections

13/12/2019

Rule 6. Qualifications of the Office bearers and members of the national executive committee

The election/co-option as provided in rules 10(1), (2), (3) and (4) as a member of the National Executive Committee or any of the office bearers shall be subject to the following
qualifications :

1. Member of the National Executive Committee

Any individual life member or a representative of the association member that may be nominated in terms of rule 5(C)(ii), who is in practice of direct and/or indirect taxes for more than five years and who has been a member of the Federation for at least two years can file his/her nomination form for the election at the Ordinary General Meeting.

Rule 14. TERM OF THE NATIONAL EXECUTIVE COMMITTEE

The term of the NEC elected in accordance with Rule 10 shall be two calendar years commencing from 1st day of January that follows the date of the election at the Ordinary General Meeting. Subject to other rules and regulations and the election rules framed by the National Executive Committee under rule 7, the general body at its ordinary general meeting shall elect not more than fifty (50) consenting members duly proposed and seconded, in the prescribed nomination form, to constitute a National Executive Committee of the Federation for the ensuing term of two calendar years commencing from the 1st January that follows the date for the ordinary general meeting.

Provided however that the number of members to be elected from each zone shall be determined in accordance with rule 7(3). The format of the prescribed nomination form along with the election rules shall be available with each zone office for the benefit of the existing eligible members.

ALL INDIA FEDERATION OF TAX PRACTITIONERS RULES FOR ELECTION TO THE NATIONAL EXECUTIVE COMMITTEE

1. The National Executive Committee shall arrange for the election of the members of the next Executive Committee, as and when an ordinary General Body meeting is called under Rule of the Constitution.

2. The National Executive Committee shall fix the date and the time up to which and the place or places where nominations for the purposes of the aforesaid election shall be received. If by the date and the time fixed by the National Executive Committee, no nominations are received or sufficient nominations to fill all the posts of the National Executive Committee are not received, nominations for all the posts, or nominations falling short for filling all the posts shall be called for at the time of the General Body meeting. In the latter case Chairman of the General Body meeting shall have all the powers to do the needful in the matter. Members can be nominated for election even in absentia.

3. If at the General Body meeting sufficient numbers of nominations are not forthcoming to fill all the posts on the National Executive Committee the General Body shall be entitled to empower the National Executive Committee to fill the vacancies by nominations at its subsequent meetings. Such nominations shall be in addition to co-option referred to in Rule 10(2).

4. Any life member and any representative nominated in terms of rule 5(c)(ii), shall be eligible to seek election to the National Executive Committee. His name shall be proposed and seconded by any member of the Federation.

“Provided further that it shall be the duty of the each Member of the National Executive Committee including office bearers to attend 50% or at least two meetings of the National Executive, whichever is less in a calendar year. The defaulting member shall not be eligible for election or nomination or co-option to be a NEC member in the next NEC.

*Provided that any member who have already opted to be on the Zone Managing Committee for the ensuing term shall not be eligible to file nomination for NEC. Requisite declaration shall be annexed with the nomination form.

5. If more nominations are received than the total number of posts on the National Executive Committee, there shall be election, unless any member withdraw his nomination/s before the announcement of voting at the General Body meeting, so that the total number of nominations are equal to or less than the total number of posts on the National Executive Committee.

6. *The Election Officer, after the expiry of the time notified for receiving the nomination forms, shall scrutinise all the forms and notify, all valid and invalid nominations with reasons for invalidity of any of the forms in the list, with the help of electronic media. He shall also announce the zonewise list of valid nominations alongwith the maximum number required to be elected in terms of Rules 7(3) and 14, “at least five days before the actual date of voting.”**

* Added on 24th December, 2016

** Added on 6th October, 2018

7. If on withdrawal of any nomination/s, all the posts on the National Executive Committee cannot be filled, the General Body shall be entitled to empower the next National Executive Committee to fill the vacancies as provided in Rule 3 of these Rules.

7A. *The members existing on the date of issue of the notice convening the AGM, will only be eligible to vote at the said meeting. Such list of members shall be made available by the Secretary General to the Election Officer.

*Any member admitted thereafter will not be eligible to vote at the election however he can attend and take part in the discussions on any other item on agenda of the AGM.

8. Election to the National Executive Committee shall be by secret ballot.

9. Chairman of the General Body meeting shall appoint one or more scrutinisers from amongst the members present at the Meeting or otherwise. The scrutiniser/s, so appointed, shall have all the powers to conduct the election and report the result thereof to the Chairman of the meeting.

10. Before the close of the General Body meeting, the result of the election shall be declared by the Chairman of the meeting.

* Added on 24th December, 2016

Ganesh Purohit
Chief Election Officer

NOTICE OF ORDINARY GENERAL MEETING

October 25, 2019

NOTICE is hereby given that an Ordinary General Meeting as provided in Rule 10 of the Rules & Regulations of the All India Federation of Tax Practitioners will be held on Friday, the 13th December, 2019 at Khadayata Bhuvan, Plot No. 32, Hanuman Road, Near Parle English Medium School, Vile Parle (E), Mumbai – 400 057 (Maharashtra) at 3.30 p.m. to transact the following agenda as prescribed in Rule 8.

A G E N D A

1. Welcome address and opening remarks by the President, Dr. Ashok Saraf.

2. To confirm the proceedings of previous OGM held on 1st December, 2017 at Jabalpur.

3. To elect 50 members to the National Executive Committee for the term 2020 & 2021 in accordance with Rule 7(3) read with Rule 10(1) & 10(2) and Rule 14 of the Rules & Regulations.

4. To receive the report of the Election Officer and declaration of election result.

5. To consider suggestions from the members in respect of rendering better service to the members and for overall progress of the AIFTP.

6. To transact any other business that may be raised with the permission of the Chair

For All India Federation of Tax Practitioners

Sd/-
Anand Kumar Pasari
Secretary General

Notes:

1. At the National Executive Committee meeting held on 22nd June, 2019 at Tirupati, Shri Ganesh Purohit (Immediate Past President) is appointed as Chief Election Officer. The Chief Election Officer has already issued Notice for election in AIFTP Times for the month of October, 2019 at Page No. 4. The above notice is issued consequent to the Notice by the Chief Election Officer.

2. Copy of the updated Memorandum of Association and Rules and Regulations can be obtained from the Head Office at Mumbai or downloaded from Official website of the Federation www.aiftponline.org

Members are requested to read the same before filing the nomination.

3. Nomination form can be downloaded from the website of the Federation or on request may be obtained from the Head Office at Mumbai from Monday, 11th November, 2019 onwards.

4. Nominations are hereby invited for the membership of National Executive Committee from all eligible members in terms of amended Rules 10(1), 10(1A), 10(1B) and 14 subject to numerical limit as provided in Rule 7(3) for each Zone. The number of members to be elected from each zone will have their contest amongst the candidates from that zone but all members from all zones will be eligible to vote for all the five zones.

5. Any member who have already opted to be on the Zonal Managing Committee for the ensuing term shall not be eligible to file nomination for NEC. Requisite declaration to this effect shall be annexed with the nomination form.

6. Nomination form duly filled in, affixed with photo, and requisite non-refundable deposit Cheque or confirmation of RTGS of ₹ 2000/-, duly proposed and seconded MUST REACH the registered office of the Federation on or before Monday, 2nd December, 2019 up to 5:00 p.m.

7. The Nomination Forms would be scrutinized by the aforesaid Election Officer on Tuesday, 3rd December, 2019 and would notify all valid and invalid nominations on the electronic media

8. Candidate may withdraw the nomination on or before Sunday, 8th December, 2019 up to 5.00 p.m. and Declaration of Final List of Candidates would be notified on the electronic media and conduct the election if warranted at Mumbai (Maharashtra) at the time of OGM on Friday, 13th December, 2019

9. As per clause 10(3) of the Constitution of the Federation, the Chairman of the respective zone shall be ex-officio member of the National Executive Committee. Hence Chairman elect is not required to file the nomination for the National Executive Committee.

10. The Chief Election Officer declares that as per the membership of respective zones as on 25th September, 2019 maximum number of candidates who can be elected to NEC as per rule 7(3) of the Constitution are as under:—

Zones

Members as on 25-10-2019

Entitlement (Max.)

Western –

2393

Max. 16 members can be elected

16

Southern –

1312

09

Northern –

1218

08

Central –

1059

07

Eastern-

1620

10

Total –

7602

50

11. As per Rule 10, clause 6 of the Constitution of the Federation, any individual life member or a representative of the Association member who is more than 5 years in practice and who has been a member of the Federation for at least two years can only file the nomination for NEC.

12. The National Executive Committee Meeting will be held once in three months at different places in the country, along with two-day conference. The Executive Committee Members have to bear personally the expenses of travelling, stay and delegate fees of the conference and also devote time for the welfare of the Federation. Persons of integrity and who can afford to spend time and money for the welfare of the profession are only requested to file the nomination. Please note that it is mandatory to attend at least 50% of NEC meetings in a year or else they shall not be entitled to file nomination for re-election to NEC.

13. The National Executive at its first meeting after election shall elect from amongst its members the following Office Bearers for one calendar year i.e. for the year 2020 only, (Rule 10 Clause 4 read with clause 6 read with amended Rule 11), however the term of National Executive will continue to be that of two calendar years as per Rule 14.

1. One President 2. One Deputy President 3. Five Vice Presidents (one from each zone)

4. One Secretary General 5. One Hon. Treasurer and 6. Five Hon. Joint Secretaries (one from each zone)

14. For further clarification the members may contact the Secretary General, Chairman of respective zone or Registered Office.

Query 1

Scope of exemption about Storage and Warehousing of fruits under GST

The facts are that the querist, amongst others, involved in warehousing of wet dates in his warehouse.

Till 30-9-2019, querist was paying GST on warehousing charges collected from the customers.

On 30-9-2019, the Government has issued Notification No. 21/2019 Central Tax – (Rate). The relevant part of said notification is as under:

“[TO BE PUBLISHED IN THE GAZZETE OF INDIA, EXTRAORDINARY, PART II,

SECTION 3, SUB-SECTION (i)]

Government of India

Ministry of Finance

(Department of Revenue)

Notification No. 21 /2019- Central Tax (Rate)

New Delhi, the 30th September, 2019

G.S.R……(E).– In exercise of the powers conferred by sub-section (1) of section 11 of the Central Goods and Services Tax Act, 2017 (12 of 2017), the Central Government, on being satisfied that it is necessary in the public interest so to do, on the recommendations of the Council, hereby makes the following further amendments in the notification of the Government of India, in the Ministry of Finance (Department of Revenue), No. 12/2017- Central Tax (Rate), dated the 28th June, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R. 691(E), dated the 28th June, 2017, namely:–

In the said notification,–

(i) in the Table, —

(a) against serial number 7, in the entry in column (3), for the words and brackets, “twenty lakh rupees (ten lakh rupees in case of a special category state) in the preceding financial year”, the following words, brackets and figures shall be substituted, namely, –

“such amount in the preceding financial year as makes it eligible for exemption from registration under the Central Goods and Services Tax Act, 2017 (12 of 2017)”;

(b) after serial number 9A and the entries relating thereto, the following shall be inserted namely:—

(1)

(2)

(3)

(4)

(5)

“9AA

Chapter 99

Services provided by and to Fédération Internationale de Football Association (FIFA) and its subsidiaries directly or indirectly related to any of the events under FIFA U-17 Women’s World Cup 2020 to be hosted in India.

NIL

Provided that Director (Sports), Ministry of Youth Affairs and Sports certifies that the services are directly or indirectly related to any of the events under FIFA U-17 Women’s World Cup 2020.”;

(c) against serial number 14, in the entry in column (3), after the word “below”, the words “or equal to” shall be inserted;

(d) against serial number 19A, in the entry in column (5), for the figures “2019”, the figures “2020” shall be substituted;

(e) against serial number 19B, in the entry in column (5), for the figures “2019”, the figures “2020” shall be substituted;

(f) after serial number 24A and the entries relating thereto, the following serial number and entries relating thereto shall be inserted, namely:—

(1)

(2)

(3)

(4)

(5)

24B

Heading 9967 or Heading 9985

Services by way of storage or warehousing of cereals, pulses, fruits, nuts and vegetables, spices, copra, sugarcane, jaggery, raw vegetable fibres such as cotton, flax, jute etc., indigo, unmanufactured tobacco, betel leaves, tendu leaves, coffee and tea.

NIL

NIL”,

2. This notification shall come into force with effect from the 1st day of October, 2019.

[F. No. 354/136/2019 -TRU]
(Ruchi Bisht)
Under Secretary to the Government of India

Note:- The principal notification was published in the Gazette of India, Extraordinary, vide notification No. 12/2017 – Central Tax (Rate), dated the 28th June, 2017, vide number G.S.R. 691 (E), dated the 28th June, 2017 and was last amended by notification No. 13/2019 – Central Tax (Rate), dated the 31st July, 2019 vide number G.S.R. 540(E), dated the 31st July, 2019.”

In light of above notification, querist is of view that the warehousing charges related to wet dates are getting exempted and no GST is required to be charged by querist.

The querist has sought opinion about correctness of above understanding.

Reply:

I have gone through the above notification. Earlier (i.e. prior to 1-10-2019) there was Notification no. 11/2017- Central Tax (Rate) and others by which warehouse charges for agricultural produces were given exemption.

There was ambiguity as to whether warehouse charges for wet dates will be exempt as agriculture produce. The Government has issued clarification vide circular no. 16/2017-GST dated 15-11-2017. However, there was no specific mention of wet dates and hence some of the suppliers continued to charge GST to their customers.

The notification dated 30-9-2019 appears to be specifically issued to clear ambiguity about above matter. The earlier notification referred to agricultural produce and a doubt was lurking whether wet dates will fall in the said category or not.

However, now the above notification dated 30-9-2019 is in reference to specific category, like warehousing of cereals, pulses, fruits etc.. So, if it can be said that the warehouse charges are for fruits, the said warehouse charges will be exempt under above notification.

The nature of wet dates is required to be seen. As informed, it is covered as agricultural produce as it is sold in same form without any processing.

In dictionaries and in common parlance also wet dates are understood as ‘fruits”.

The definition in following dictionaries can be referred for sake of indication.

In freedictionary.com

Date palm (redirected form Date (fruit)

also found in : Thesaurus, Encyclopedia.

Thesaurus Antonyms related words Synonyms Legend:

Switch to new thesaurus

Noun 1. date palm –

tall tropical feather palm tree native to Syria bearing sweet edible fruit

Phoenix dactylifera

date – sweet edible fruit of the date palm with a single long woody seed.”

In dictionary.com

Fruit[ froot ]

noun, plural fruits, (especially collectively) fruit.

1. any product of plant growth useful to humans or animals.

2. the developed ovary of a seed plant with its contents and accessory parts, as the pea pod, nut, tomato, or pineapple.

3. the edible part of a plant developed from a flower, with any accessory tissues, as the peach, mulberry, or banana.

4. the spores and accessory organs of ferns, mosses, fungi, algae, or lichen.

5. anything produced or accruing; product, result, or effect; return or profit:”

In Merriam Webster dictionary

Fruit noun, often attributive

Definition of fruit

(Entry 1 of 2)

1a: a product of plant growth (such as grain, vegetables, or cotton) the fruits of the field)

b (1): the usually edible reproductive body of a seed plant

especially: one having a sweet pulp associated with the seed the fruit of the tree..”

Wet date is fruit. The term ‘fruit’ is not preceded by any adjective like “raw fruits” or “processed fruits” etc.

Therefore, all fruits, whether raw or processed or finished fruits are covered.

It covers fresh fruits as well as dry fruits. Whenever the Government wants to restrict the category to “raw” then it is so specifically mentioned like, in relation to “vegetable fibre” in above notification. Therefore, wet date, being fruit, it is covered by above notification and become exempt from GST.

Of course, the consequences of being exempt supply, will apply.

It also be noted that the invoice should specifically narrate about storage/warehouse charges for wet dates, to avoid any future ambiguity.

Therefore in my opinion the storage/warehousing charges for wet dates are exempt under above notification.

 

1. An LLP is converted into a private limited company from 16th February 2019. Up to 15th February, LLP will be considered as an assessee and will need to file return. As per Companies Act, LLP loses its existence on 16th February; therefore, for the purpose of Companies Act, consolidated balance sheet of Company incorporating LLP accounts will be prepared.

LLP has loss so IT return of LLP will be filed with loss. In case of the company, consolidated final accounts will show loss of both LLP and part period of company.

How to prepare return? Do we need to prepare separate statement of profit & loss and balance sheet of company for income tax return? How to show loss of LLP to be carried forward to next year?

Ans. When an LLP is converted into a company, the LLP and the company are separate legal entities, having different Permanent Account Numbers. The LLP will have to file a return for the income or loss for the period up to 15th February, and the company will file a return for the income or loss for the period from 16th February to 31st March. The company will get the benefit of carry forward of the loss of the LLP on account of the provisions of section 72A(6), provided the conversion is exempt under section 47(xiii).

The LLP will prepare its accounts up to 15th February 2019, and its closing balances of assets and liabilities as of that date will become the opening balances of the company on 16th February 2019. However, the incomes and expenditures of the LLP till 15th February will remain those of the LLP, and will not be part of the statement of Profit & Loss of the company for the year, since this would include only income and expenditure from 16th February 2019. Both the LLP and the company will need to file their respective returns before the respective due dates under section 139(1), in order for the company to get the benefit of their respective losses.

2. A charitable trust registered u/s 12AA has as its objects, education, medical relief, the relief of poverty and advancement of any other object of general public utility. It had filed Form No 10 for accumulation of ₹ 5,00,0000 out of its income for AY 2017-18 before the due date of filing of its return of income. The purpose of accumulation stated in Form No 10 was “spending on education, medical relief, the relief of poverty and any other object of general public utility”. The resolution uploaded with the Form No 10 however specified certain medical educational and relief of poverty projects. The Assessing Officer proposes to disallow such accumulation on the ground that the specific purposes of accumulation have not been mentioned in Form No 10. Is this justified?

Ans. Under the provisions of section 11(2), where 85% of the income is not applied or deemed to have been applied to charitable or religious purposes in India but is accumulated or set apart for application to such purposes in India, such accumulated income is exempt subject to various conditions. One of the conditions is that the assessee furnishes a statement in form 10 to the assessing officer, stating the purpose for which the income is being accumulated and the period for which the income is to be accumulated, not exceeding five years. Since a trust can spend its income only on its objects, obviously the purpose of accumulation should be within the scope of the objects of the trust. The issue is whether the purpose of accumulation can be just the reproduced objects, or whether it has to be more specific in nature. There have been differing views on this issue taken by various courts, with most of the High Courts taking the view that so long as the purpose of accumulation is in accordance with the objects of the trust, even reproduction of the objects is permissible.

In this case, the resolution spells out the specific activities on which the trust proposes to spend the accumulation. A similar issue had arisen before the Gujarat High Court in the case of CIT(E) v. Bochasanwasi Shri Akshar Purshottam Public Charitable Trust 409 ITR 591, where the assessee passed a formal resolution specifying that funds were set apart for ongoing hospital projects of trust and for modernization of existing hospitals, without specifying the purpose of accumulation in form No. 10. The Gujarat High Court held that the assessee was entitled to the benefit of accumulation under section 11(2). The special leave petition against this order of the Gujarat High Court was dismissed by the Supreme Court, as reported in 263 Taxman 247. Therefore, so long as the resolution specifies the detailed purposes for which the accumulation is being sought, the assessee would be entitled to the benefit of accumulation.

3. A charitable trust registered u/s 12AA had applied an amount of ₹ 56 lakh towards charitable purposes out of its income of ₹ 60 lakh. It further claimed an accumulation u/s 11(1)(a) of 15% of its income at ₹ 9 lakh, and claimed a deficit of ₹ 5 lakh. The Assessing Officer proposes to limit the accumulation to ₹ 4 lakh, and deny the benefit of carry forward of deficit. Is this action justified?

Ans. Under section 11(1)(a), income derived from property held under trust wholly for charitable or religious purposes is exempt to the extent to which such income is applied to such purposes in India, and, where any such income is accumulated or set apart for application to such purposes in India, to the extent to which the income so accumulated or set apart does not exceed 15% of the income from such property. In other words, the income can either be applied for charitable or religious purposes, or accumulated or set apart for spending for charitable or religious purposes; in either case, the income would be exempt. There cannot be a situation where the same income is both applied as well as accumulated, as that is a contradiction in terms. Therefore, it is only the surplus of the year (income less the expenditure, including capital expenditure), which qualifies for accumulation under section 11(1)(a), subject to the limit of 15% of the income. Such accumulation cannot therefore result in a deficit.

4. A Pvt Ltd was making losses for several years, and has started making profits in the last 2 years of about Rs 80 lakh per year. It expects to maintain the same level of profits for the next 3 years. Its turnover for the financial year 2017-18 was less than ₹ 400 crore. While it has set off all the unabsorbed losses, it still has unabsorbed MAT credit of ₹ 12 lakh. Should it opt for the rate of 22% under section 115BAA for AY 2020-21?

Ans. Assuming profit before tax is almost the same as book profits, the tax liability of A Pvt Ltd under normal tax provisions for AY 2020-21 would be ₹ 12 lakh (₹ 20 lakh, being 25% of ₹ 80 lakh, less MAT credit of ₹ 8 lakh). Under section 115BAA, its tax liability would be ₹ 19.36 lakh (₹ 17.60 lakh, being 22% of ₹ 80 lakh, plus 10% surcharge). It is therefore advantageous for it to continue under the normal tax rates for AY 2020-21. Assuming that the profits are again about ₹ 80 lakh for AY 2021-22, its tax liability under normal provisions would be ₹ 16 lakh (₹ 20 lakh less remaining MAT credit of ₹ 4 lakh), while its tax liability under section 115BAA would again be ₹ 17.60 lakh. For this year as well, A Pvt Ltd should continue with the normal rates of tax, and not opt to be covered by section 115BAA. It is only in the subsequent year that it should opt for the lower rate of 22% under section 115BAA.

 

ISSUE

1. Whether ‘Sanitary Napkin’ and ‘Baby Diaper’ are same nature of goods for GST classification?

2. What is the correct HSN code and Rate of Tax of ‘Baby Diapers’ under GST?

OUR OPINION

1. Chapter 96 of HSN code with Heading ‘Miscellaneous Manufactured Articles’ gives as following:

(1)

(2)

9619

Sanitary towels (pads) and tampons, napkins and napkin liners for babies and similar articles, of any material

9619 00

Sanitary towels (pads) and tampons, napkins and napkin liners for babies and similar articles, of any material:

9619 00 10

Sanitary towels (pads) or sanitary napkins

9619 00 20

Tampons

9619 00 30

Napkins and napkin liners for babies

9619 00 40

Clinical diapers

9619 00 90

Other

SANITARY NAPKIN’ is a specified and separate entry with HSN Code 9619 00 10, while there is another entry ‘NAPKINS AND NAPKIN LINERS FOR BABIES’ with HSN Code 9619 00 30. For interpretation of the HSN code, more specific entry will be appropriate. Hence, the entry having words ‘for babies’ needs to be given credence as the product under our consideration is ‘baby Diapers’ or in other words ‘Diapers of the size and design which can only be used by babies’ i.e. small children. It is important that the words ‘For babies’ has been used under entry having HSN Code 9619 00 30 i.e. ‘NAPKINS AND NAPKIN LINERS FOR BABIES’ being a separate entry under separate HSN code shall be considered more appropriate for baby napkins.

Further, there is another sub-category as ‘CLINICAL DIAPERS’ under HSN Code 9619 00 40 which does not specify the user i.e. either for adults or for mid aged children or for babies. We need to consider what is clinical diaper and why the word ‘Clinical’ has been prefixed before the word ‘Diaper’ and can a baby diaper be included in the category of ‘Clinical Diaper’? After considering various articles as well as internet, it can be mentioned that ‘Clinical Diapers’ are those which are clinically safe and recommended for use by human beings including children and babies. Clinical does not mean ‘only for medical use under specified circumstances’, it has wider connotation.

The schedule of classification under GST specifying the rate of tax on goods under Notification No. 1/2017- Central Tax (Rate) dated 28/06/2017 on all goods covered under HSN code 9619 including its all sub-categories of goods was originally specified as 6% CGST +6% SGST or 12% IGST, subsequently the Notification No. 19/ 2018- Central tax (Rate) dated 26.07.2018 made certain changes in rate of tax for HSN code: 9619 00 10, “Sanitary towels (pads) or sanitary napkins, tampons” has been classified as GST entry attracting ‘nil’ rate. Thus, the original entry under HSN Code 9619 specifying single rate has been converted into having two different rates i.e. ‘Nil’ rate for sub-categories 9619 00 10 or 9619 00 20.

But nothing has been changed for the ‘Napkins and Napkin liners for babies’ with ‘HSN Code 9619 00 30’ or for ‘Clinical Diapers’ under HSN Code 9619 00 40 which were originally included and classified under entry attracting 6%+6% as per Notification No.1/2017-Central Tax (Rate). Thus, the Rate of GST on baby diapers or napkins for babies or clinical diapers will be 6% CGST +6% SGST or 12% IGST.

Further, it maybe pertinent to briefly consider the category under the erstwhile Central Excise regime wherein under HSN Code 4818 40 00, the items ‘Baby and Clinical Diapers’ were put under exemption as one entry, thus the Excise Law had also recognised the item ‘Baby Diaper’ under the same category of ‘Clinical Diapers’ for the taxation purpose. Under the GST regime the HSN Code 4818 40 00 does not exist, thus it would not be subjected to tax under broad category of HSN Code 4818 which is now under GST is liable to 9% CGST + 9% SGST or 18% IGST.

 

“Be not Afraid of anything. You will do Marvelous work. it is Fearlessness that brings Heaven even in a moment.”

Swami Vivekanand