“There are three ideas involved in a profession: organisation, learning, and a spirit of public service. These are essential. The remaining idea, that of gaining a livelihood, is incidental.”
– Roscoe Pound
Professions have traditionally been viewed through this prism of nobility which places them on a pedestal higher than a mere trade or occupation or even business. However, for taxation (whether direct or indirect), there is hardly any distinction between a profession or a business. Under the Income-tax Act, 1961 (IT Act), incomes from business and from profession are taxed similarly and under the same head.
Service Tax was introduced as a levy on services from 1st July 1994. Initially starting with three services in 1994, Service Tax net has consistently been broadened to gradually include more and more services till 1st July 2012, when all services were made chargeable to Service Tax except a handful of services contained in the negative list.
Exactly 23 years after 1st July 1994, the existing indirect tax regime under various laws has been replaced by one tax, the Goods and Services Tax (GST). In present times (whether under the erstwhile service tax regime or the new GST regime), indirect tax has been extended to almost all spheres of economic activity. Since professionals are not engaged in the supply of goods but only in supply of limited number of services, for the purpose of this write up, provisions of the new GST law are discussed only in so far as they affect services provided by professionals that are part of the knowledge-based economy.
II. Genre of the GST law
For taxation of intra-state supply of services (and goods) throughout India1, the Parliament has enacted the Central Goods and Services Tax Act, 2017 (CGST Act) while the respective states have enacted their own law. For example, the law in Tamil Nadu is called the Tamil Nadu Goods and Services Tax Act, 2017 while the law in Uttar Pradesh is called the Uttar Pradesh Goods and Services Tax Act, 2017, and so on. The Parliament has also enacted the Union Territory Goods and Services Tax Act, 2017 (UTGST Act) for taxation of intra-state supply within the Union territories of the Andaman and Nicobar Islands, Lakshadweep, Dadra and Nagar Haveli, Daman and Diu and Chandigarh. New Delhi and Puducherry, despite being Union Territories, have their individual legislatures and are considered “states” for GST process.
A separate Act for the Union Territories was necessary as without it, GST on intra-state supply could not have been levied in these Union Territories. The UTGST Act is equivalent to the State GST Acts.
For taxation of inter-state supply, the exclusive power of which has been retained by the Parliament2, the Integrated Goods and Services Act, 2017 (IGST Act) has been enacted.
The State GST Acts are replicas of each other and of the CGST Act in all material aspects. This was necessary to maintain consistency in the manner of taxation within each State. In fact, as per Section 11(4) of the State GST Acts, a notification issued by the Central Government granting an exemption shall be deemed to be a notification under the State Acts as well to ensure uniformity in law throughout the country.
III. Professionals: Meaning, relevance of classification and impact of GST law
The term “profession” is not defined in any of the GST Acts. But, it is generally understood to mean “a paid occupation, especially one that involves prolonged training and a formal qualification”. “Business” has been defined in Section 2 of the CGST Act and the State GST Acts to include profession.
Traditionally, advocates, chartered accountants, company secretaries, cost accountants, doctors, dentists, engineers, architects and interior decorators, teachers are regarded as professionals. By Notification No. SO 17(E), dated 12-1-1977, the Central Board of Direct Taxes (CBDT) has notified work of film artists (actors, cameramen, directors/ assistant directors, music directors/ assistant music directors, art directors/ assistant art directors, dance directors/ assistant dance directors, editors, singers, lyricists, story writers, screen play writers, dialogue writers and dress designers) as profession.
While the classification of an activity as constituting profession or not may be relevant for the purposes of Income-tax law, the classification is not relevant for the GST law. What is relevant is the nature and description of the service. For the purpose of this write up, services provided by and provisions applicable to advocates, chartered accountants, company secretaries, cost accountants, doctors, dentists, architects, interior decorators/ designers, engineers, teachers, film artists and designers (fashion, industrial and specialty) are discussed.
IV. Taxability of services provided by professionals
A. Services provided by legal professionals i.e. advocates
Position under the erstwhile service tax regime – Till 2011, advocacy services were outside the purview of service tax net. By Finance Act, 2011, services by way of representation before the judicial authorities was brought within the tax net. From 2012 onwards i.e. in the negative list regime, legal services provided by an individual advocate/ partnership firm of advocates to a certain class of persons was exempted while liability was imposed on a reverse charge basis i.e. on the recipient of services for services which did not qualify for exemption.
From 2016, designated senior advocates were treated as a distinct class among legal service providers and liability to pay service tax was imposed upon them on a forward charge basis i.e. the liability to pay service tax lay upon the senior advocate and not on the service recipient. After some opposition, the Government introduced certain changes making reverse charge applicable to senior advocates for services rendered to business entities with a turnover of more than ₹ 10 lakhs.
Liability under the GST law – As per Notification No. 12/2017-Central Tax (Rate) dated 28th June 2017 (Notification No. 12), “legal service” means any service provided in relation to advice, consultancy or assistance in any branch of law, in any manner and includes representational services before any court, tribunal or authority. Legal services are contained in Heading 9982 of the new classification scheme. The further sub-classification is as follows:
The rate of Central GST (CGST) and State GST (SGST) / Union Territory GST (UTGST) applicable to legal services is 9% each (aggregating to 18%). The rate of Integrated GST (IGST) is 18%3.
However, the GST Council, in its meeting on 19th May 2017, has decided to continue service tax exemptions for certain services even under the GST regime. This decision has been given effect to by Notification No. 12 wherein services taxable at Nil rate have been specified. These services include legal services provided by an individual advocate/ partnership firm of advocates to another advocate/ partnership firm of advocates/ non-business entities/ business entities with a turnover up to ₹ 20 lakhs4. The exemption is also applicable to legal services provided by senior advocates to non-business entities/ business entities with a turnover up to ₹ 20 lakhs4. It appears that the exemption does not extend to legal services provided by senior advocates to another advocate/ partnership firm of advocates. Legal services which are not exempted, subject to the discussion below, would in my view, be liable for GST.
Service recipient to pay/ reverse charge mechanism – On recommendation of the GST Council, the Government, in exercise of powers under Section 9(3) of the CGST Act, can specify categories of supply of services the tax on which GST shall be paid on reverse charge basis by the recipient of such services. In its 14th meeting on 19th May 2017, the GST Council has decided that services provided or agreed to be provided by an individual advocate or firm of advocates by way of legal services should be charged under reverse charge mechanism. However, by Notification No. 13/ 2017-Central Tax (Rate) dated 28th June 2017 (Notification No. 13), it has been notified that GST on services supplied by an individual advocate including a senior advocate or by a firm of advocates by way of representational services before any court/ tribunal/ authority to any business entity located in the taxable territory, including where contract for provision of such service has been entered through another advocate or a firm of advocates, by way of legal services, to a business entity is payable on reverse charge basis i.e. by the recipient of service. Thus, while the GST Council meeting had decided that all legal services provided by advocates should be chargeable under reverse charge mechanism, in Notification No. 13/ 2017, the wording used appears to make applicable reverse charge mechanism only to representational services. In case of conflict between the minutes of GST Council meeting and a notification issued by the Government, the notification should prevail. This is because notification has the force of law while minutes of GST Council meeting are only for informational purposes. The following disclaimer in the minutes of the 14th meeting merits consideration in this regard:
“The list of services that will be under reverse charge as approved by the GST Council is given below. The information is being uploaded immediately after the GST Council’s decision and it will be subject to further vetting during which the list may undergo some changes. The decisions of the GST Council are being communicated for general information and will be given effect to through Gazette notifications which shall have force of law.”
It is thus clear that only representational services are liable for GST under the reverse charge mechanism. For other legal services such as advisory services, documentation and certification services etc., reverse charge mechanism does not appear to have been made applicable. The above would have meant that liability for those legal services for which exemption has neither been continued nor reverse charge mechanism made applicable would lay on the provider of such legal services i.e. the advocate (including senior advocate and firm of advocates) concerned.
Exemption from registration – The GST Council, in its 16th meeting on 11th June 2017, has taken a decision that advocates including senior advocates are exempted from the requirement of registration. However, without the imprimatur of the Government by way of a notification, this decision too would not have the force of law. Notification No. 5/ 2017 dated 19th June 2017 appears to be issued pursuant to the 16th GST Council meeting. By this notification, the Government has specified that persons who are only engaged in making supplies of taxable services, the total tax on which is liable to be paid on reverse charge basis by the recipient of such services as exempted from obtaining registration under the CGST Act. Since advocates/ senior advocates supply legal services other than representational services as well, there was a school of thought that advocates/ senior advocates would become liable to register themselves under the GST law. For instance, an advocate who charges a fee for conference in an advisory assignment to a client whose turnover exceeds ₹ 20 lakhs should be liable to pay GST on forward charge basis, and consequently, be liable for registration as well.
Delhi High Court takes note of unclear legal position – The Delhi High Court, in J. K. Mittal & Company v. UoI & Ors [W.P.(C) 5709/2017], by order dated 12th July 20175, has taken note of the lack of clarity under GST law as regards taxation of advocates and has directed that no coercive action should be taken against advocates (including firms) for non-compliance of GST provisions until suitable clarification is issued in this regard.
Clarification dated 15th July 2017 issued by the Government – The Government has issued a clarification dated 15th July 2017 wherein it has been clarified that reverse charge mechanism would extend to all legal services supplied by advocates and senior advocates. It appears that the Government has, in deference to the order of the Delhi high Court in J. K. Mittal & Company (supra), issued this clarification. This clarification, in my view, puts the controversy as regards position of advocates to rest and makes it clear that all legal services provided by them would be chargeable under reverse charge mechanism.
Services provided by arbitral tribunals – As per Section 7(2) read with Schedule III of the CGST Act and the State GST Acts, services provided by statutory tribunals are not chargeable to GST. However, of late, we have seen a sharp increase in arbitration where parties settle their contractual disputes through arbitration by referring the disputes to an arbitral tribunal constituted by agreement of parties. Advocates (including senior advocates) are often appointed as arbitrators. By Notification No. 12, services provided by an arbitral tribunal to a non-business entity or to a business entity with an aggregate turnover up to ₹ 20 lakhs (₹ 10 lakhs in the case of special category states viz. Arunachal Pradesh, Assam, Jammu and Kashmir, Manipur, Meghalaya, Mizoram, Nagaland, Sikkim, Tripura, Himachal Pradesh and Uttarakhand) in the preceding financial year are taxable at Nil rate. In case services are provided to a business entity with turnover in excess of ₹ 20 lakhs or ₹ 10 lakhs, as the case may be, GST is liable to be paid on reverse charge basis by the recipient of service.
B. Services provided by chartered accountants, company secretaries and cost accountants
Chartered Accountants generally provide accounting, auditing, bookkeeping, tax return preparation and filing, consultancy and representational services. These services are contained in Heading 9982 and are liable to CGST and SGST/ UTGST at the rate of 9% each (aggregating to 18%). The rate of IGST is 18%.
While there is no separate heading for company secretarial and cost accountancy services, such services can be classified in the residuary Tariff entry under the same Heading and would also be liable to CGST, SGST/ UTGST or IGST, as the case may be, at the same rates.
Insolvency and receivership services – With the enactment of the Insolvency and Bankruptcy Code, 2016, one of the recent additions to a host of services that can be provided by chartered accountants, company secretaries and cost accountants is insolvency and receivership services. Such services are also liable to CGST and SGST/ UTGST at the same rates as above.
It is important to note that even advocates are entitled to act as insolvency professionals and provide these services. However, in such a case, exemption from GST and/ or reverse charge mechanism may not be available to advocates and tax would be payable by advocates on forward charge basis at the same rate as other professionals providing these services and not under reverse charge basis. This is because though insolvency and receivership services may qualify to be termed as “assistance in any branch of law” to fall within the definition of the term “legal services”, a separate and more specific entry in the new classification scheme (Tariff entry 998240) should be preferred over the general classification of legal services as per the accepted principle of interpretation of generalia specialibus non derogant which means provisions of a general statute must yield to those of a special one.
Representational services provided by chartered accountants, company secretaries and cost accountants – Certain statutes such as the IT Act, the Companies Act, 2013 and even the CGST Act allow chartered accountants/ company secretaries/ cost accountants, as the case may be, to represent clients before certain authorities and tribunals. Though such services can be termed as legal services, the exemption available to advocates from GST and/ or reverse charge mechanism is not applicable to chartered accountants/ company secretaries/ cost accountants. In such cases, the chartered accountant, the company secretary or the cost accountant, as the case may be, would be liable to pay GST on representational services on forward charge basis at the same rate as their other services i.e. 18%, under the residuary Tariff entry.
Services provided by chartered accountants/ company secretaries/ cost accountants as arbitrators
– Chartered accountants, company secretaries and cost accountants are often appointed as arbitrators especially when the dispute is technical in nature and requires specialized knowledge. In such a case, Notification No. 12 and the discussion above in “services provided by arbitral tribunals” would be applicable. By Notification No. 12, services provided by an arbitral tribunal to a non-business entity or to a business entity with an aggregate turnover up to ₹ 20 lakhs (₹ 10 lakhs in the case of special category states) in the preceding financial year are taxable at Nil rate. In case services are provided to a business entity with turnover in excess of ₹ 20 lakhs or ₹ 10 lakhs, as the case may be, GST is liable to be paid on reverse charge basis by the recipient of service.
C. Services provided by doctors and dentists
Health care services provided by clinical establishments, authorized medical practitioners and para-medics were exempt from service tax. So were services provided by veterinary clinics in relation to health care of animals and birds. The logic behind these exemptions was to subsidize health care costs to the extent possible. This logic has been carried (I think correctly) into the GST regime. As per Notification No. 12, these services are made taxable Nil rate. Dental care is part of health care, and therefore, dental services should also be liable to be taxed at Nil rate.
For GST purposes, medical and dental services are covered under Heading 9993 and veterinary services are covered under Heading 9983. “Health care services” has been defined in Notification No. 12 to mean any service by way of diagnosis or treatment or care for illness, injury, deformity, abnormality or pregnancy in any recognised system of medicines in India and includes services by way of transportation of the patient to and from a clinical establishment, but does not include hair transplant or cosmetic or plastic surgery, except when undertaken to restore or to reconstruct anatomy or functions of body affected due to congenital defects, developmental abnormalities, injury or trauma. This position is the same as was prevalent in the erstwhile service tax regime. Services for appearance enhancement i.e. hair transplant, cosmetic and plastic surgeries are liable to CGST and SGST/ UTGST of 9% each (aggregating to 18%). The rate of IGST is 18%.
Apart from allopathy, as per the Clinical Establishments (Registration and Regulation) Act, 2010, Ayurveda, Yoga, Unani, Siddha, Homoeopathy and Naturopathy are recognised systems of medicine in India. Therefore, health care services under these systems of medicine are also taxable at Nil rate.
D. Services provided by architects and interior decorators/ designers
Architectural services are contained under Heading 9983 in Tariff entries 998321 – 998328. Interior decoration/ design services are contained in Tariff entry 998391. Such services are liable to CGST and SGST/ UTGST of 9% each (aggregating to 18%). The rate of IGST is 18%.
While location of architectural and interior decorator/ design services may not be relevant for intra-state supply, the same becomes relevant for inter-state supply. This is because the recipient of such services will claim credit of IGST while discharging his output tax liability (both CGST and SGST) in its own state. As per Section 12(3)(a) of the IGST Act, the place of supply of services directly in relation to an immovable property, including inter alia services provided by architects and interior decorators would be the location at which the immovable property is located. Similarly, even when provider or recipient of architectural or interior decoration services is located outside India, as per Section 13(4) of the IGST Act, the place of supply of services shall be the place where the immovable property is located.
Casual taxable person – It is not unusual for architects and interior decorators to provide services on a site at a place where she/ he does not have a regular place of business. As per Section 2(20) of the CGST Act, a “casual taxable person” means a person who occasionally undertakes transactions involving supply of goods or services or both in the course or furtherance of business, whether as principal, agent or in any other capacity, in a State or a Union territory where he has no fixed place of business. As per Section 25(1) of the CGST Act, a casual taxable person shall apply for registration at least five days prior to the commencement of business. Therefore, an architect/ interior decorator providing services in a State where she/ he does not have a regular place of business should register in that State before commencing services.
E. Services provided engineers
A person carrying on engineering profession is regarded as professional under the Income-tax Rules, 1962. Engineering services are contained in Tariff entries 998331 – 998339 under Heading 9983. An individual or a firm of engineers providing these services would be liable to CGST and SGST/ UTGST of 9% each (aggregating to 18%). The rate of IGST is 18%.
The Supreme Court in P. Krishna Menon v. CIT  35 ITR 48 (SC) has held that teaching was a vocation. As per Section 2(36) of the IT Act, profession includes vocation. Therefore, private teachers/ tutors who conduct coaching classes or run coaching centres are professionals and the services they render to students can be termed as education services and depending on the nature thereof can be classified under the appropriate Group under Heading 9992. Under this Heading, services provided by certain types of education institutes is chargeable at Nil rate. However, no exemption is provided to private teachers/ tutors. Therefore, services provided by them would be liable to CGST and SGST/ UTGST of 9% each (aggregating to 18%). The rate of IGST is 18%.
G. Designers (Fashion, industrial and speciality)
Services of fashion, industrial and speciality designers are covered under Tariff entries 998391 under Heading 9983 and would be liable to CGST and SGST/ UTGST of 9% each (aggregating to 18%). The rate of IGST is 18%.
H. Film artists
As stated above, the CBDT has regarded actors, cameramen, directors/ assistant directors, music directors/ assistant music directors, art directors/ assistant art directors, dance directors/ assistant dance directors, editors, singers, lyricists, story writers, screen play writers, dialogue writers and dress designers are regarded as professionals.
Services of film artists are contained in under Heading 9996. As per Notification No. 12, services by an artist by way of a performance in only folk or classical art forms of music, dance or theatre is chargeable to GST at Nil rate if the consideration charged for such performance is not more than ₹ 1,50,000/-. However, for other forms of art or where consideration exceeds ₹ 1,50,000/-, CGST and SGST/ UTGST are 9% each (aggregating to 18%) and IGST rate is 18%.
V. General provisions applicable to all services provided by professionals
(i) Registration – As per Section 22 of the CGST Act, a professional is liable to get herself/ himself registered under the GST law if the aggregate turnover from supply of services exceeds ₹ 20 lakhs (₹ 10 lakhs for special category states). In case of an advocate or a senior advocate or a firm of advocates engaged exclusively in supplying services chargeable at Nil rate or chargeable under reverse charge mechanism are not liable to be registered. Similarly, since doctors are engaged in supplying services which are chargeable at Nil rate, even they are not liable for registration.
However, in a situation where a professional otherwise not liable to register avails services of a professional whose services are chargeable under the reverse charge mechanism, the first mentioned professional would be liable to be registered under GST law. For example, in case where a doctor avails the representational services of an advocate in course of her/ his medical profession, GST being liable to be paid under reverse charge mechanism, the doctor, in my view, would have to register herself/ himself and would be liable to pay GST on the representational services so availed. In such a case, all GST provisions regarding maintenance of accounts and records in so far as they pertain to the representational services availed as also furnishing of returns should be applicable to such doctor.
(ii) Taxability of services of an employee – As per Section 7(2) read with Schedule III of the CGST Act and the State GST Acts, services by an employee to the employer in the course of or in relation to her/ his employment is not chargeable to tax.
Therefore, services provided by a doctor employed in a hospital or a chartered accountant employed by a chartered accountancy firm or by a teacher to her/ his employer-school, for instance, to their employers would not be chargeable to tax under the GST law.
(iii) Levy of GST – Liability to pay GST would be as under:
(a) For supply of services within a state (Intra-State): Central GST + Respective State GST;
(b) For supply of services within Union Territories (Intra-UT): Central GST + Union Territory GST;
(c) For supply of services across different States and/or Union Territories (Inter-State/ Inter-UT): Integrated GST.
(iv) Time of supply of services – The time of supply of services is relevant because the liability to pay GST arises at the time of supply of services. As per Section 13(2) of the CGST Act, time of supply of services would be the earliest of the following dates:
(a) Date of issue of invoice by the supplier, if the invoice is issued within the prescribed period prescribed (i.e. 30 days from supply of service as per Rule 2 of Tax Invoice Rules, 2017) or the date of receipt of payment, whichever is earlier; or
(b) The date of provision of service, if the invoice is not so issued within the period prescribed aforementioned or the date of receipt of payment, whichever is earlier; or
(c) The date on which the recipient shows the receipt of services in his books of account, in a case where the provisions of clause (a) or clause (b) do not apply.
In case reverse charge mechanism is applicable, the time of supply shall be the earlier of the following dates:
(a) The date of payment as entered in the books of account of the recipient or the date on which the payment is debited in his bank account, whichever is earlier; or
(b) The date immediately following sixty days from the date of issue of invoice or any other document, by whatever name called, in lieu thereof by the supplier.
Thus, it can be seen that the liability to pay GST would fall due even if the services have not been paid for within the timelines prescribed above.
(v) Valuation of taxable supply of services – As per Section 15 of the CGST Act, the value of supply of services by professionals would be the transaction value i.e. the price actually paid or payable where the service provider and recipient are unrelated and price is the sole consideration for the supply. The transaction value would include out-of-pocket expenses incurred by the service provider and shown separately in the tax invoice. Though it is uncommon for professionals to charge interest/ late fee/ penalty for delayed payment of any consideration, the same would also be includible in the valuation if separately charged.
(vi) Eligibility for availing levy under composition scheme – Composition levy under GST law is not available for services provided by professionals.
(vii) Whether Profession tax is subsumed in GST? – While the GST law is enacted to tax goods and services, Profession Tax is a tax on persons engaged in any profession, trade, calling or employment. Thus, the subject of taxation in both these cases is different. The liability to pay Profession Tax arises under the respective State acts such as the Maharashtra State Tax on Professions, Trades, Callings and Employments Act, 1975 in Maharashtra. Profession Tax is not subsumed under the GST law and continues to be governed by the respective State Act if any.
(viii) Position of various cesses levied under erstwhile law – Before the roll-out of GST, the Parliament has abolished a number of cesses by the Taxation Laws (Amendment) Act, 2017. Under the GST regime, Education Cess, Krishi Kalian Cess and Swachh Bharat Cess would not have to be paid (unless reintroduced). The GST rates prescribed are all-inclusive rates.
Cesses on certain goods which are not covered under GST such as on imported goods, on crude petroleum oil etc. would continue to be leviable. However, in so far as GST on services provided by professionals are concerned, there would be no cess.
(ix) Tax invoices, books, records and returns – As per Rule 3(2) of Tax Invoice Rules, 2017, tax invoices issued by professionals for their services ought to be prepared in duplicate – one for the recipient and one for professional herself/ himself. Each tax invoice must contain the various components of the GST i.e. CGST and SGST/ UTGST or IGST, as the case may be.
Professionals are required to maintain records and particulars of inward and outward supply of goods and services, input tax credit availed and output tax payable and should retain them until the expiry of 72 months (i.e. 6 years) from the due date of furnishing of annual return for the relevant year.
Professionals would be liable to furnish the following returns electronically through the GST Network under the GST law:
|Sr. No.||GST return Form||Particulars/ details to be furnished||Person liable to file||Due date|
|1||GSTR-1||Details of outward supplies of services effected during the tax period (monthly return)||Registered service supplier||10th of succeeding month|
|2||GSTR-2||Details of inward supplies of taxable goods and/or services effected including services on which GST is payable on reverse charge basis (monthly return)||Registered service recipient||15th of succeeding month|
|3||GSTR-3||Inward and outward supplies of goods or services or both, input tax credit availed, tax payable, tax paid (monthly return)||Every registered person||20th of succeeding month|
|4||GSTR-9||Annual return||Every registered person||31st December of succeeding financial year|
The rate of tax on services provided by professionals has undergone an increase from 15% in the erstwhile service tax era to 18% in the GST regime which is expected to boost tax revenues for the Government. The demand for professional services rarely sees a drop due to such across-the-board increase in statutory levies. We hope that the simplification and harmonization that the GST is designed to offer in the indirect tax regime brings about the expected reduction of cost of production and inflation in the economy making the Indian trade and industry more competitive domestically as well as internationally. However, such simplification and harmonisation would become achievable only when avoidable ambiguities such as the one involving position of advocates discussed above are not allowed to arise.