Section 33 of GST
Notwithstanding anything contained in this Act or any other law for the time being in force, where any supply is made for a consideration, every person who is liable to pay tax for such supply shall prominently indicate in all documents relating to assessment, tax invoice and other like documents, the amount of tax which shall form part of the price at which such supply is made.
Analysis
With the non-obstante clause, this provision secures preference over any other provision to the contrary whether in this Act or elsewhere. It states that in all documents, tax amount which shall form part of the price of supply shall prominently be indicated. This provision therefore holds the price charged to be the ‘cum tax’ price of the supply. Tax included in the price is that actually assessed on the supply. It means that if the supply price is Rs 1000/- which is inclusive of tax then every document must state that “the price of Rs 1000 includes – say IGST of Rs 180/- or alternatively say supply price is Rs 820 and IGST Rs 180 total Rs 1000. The GST law presupposes the fact that the tax, even, if not charged is deemed to have been passed on to the recipient unless proved contrary. The GST law presupposes the fact that the tax, even, if not charged is deemed to have been passed on to the recipient unless proved contrary. If ‘tax is charged’ then the same is to be indicated on the tax invoice as is also required under Rule 46(m). As a result, any claim of ‘cum tax’ computation when demands are being raised, the same will NOT be supported if tax invoice does not contain the amount of tax. Unlike in earlier tax regime, where it was held in CCE, New Delhi v. Maruti Udyog Ltd. 2002 (141) ELT 3 that total price charged is presumed to include any duty that is collectable and ‘back working’ must be allowed to arrive at ‘net duty’. GST law seems to disturb this principle by making an expression provision in this section 33 that amount that is purported to be tax must appear explicitly on the tax invoice. As a result, if tax is NOT indicated on the tax invoice, then the entire amount indicated on the tax invoice will be treated to be ‘ex tax’ as a complete departure from Maruti’s decision (cited above). In this context, it is important to refer rule 35 which states that where value of supply is inclusive of integrated tax, or as the case may, central tax, state tax, union territory tax, the tax amount shall be determined by ‘ reverse calculation;. So, where price charged is ‘cum tax’ price of the supply, then the tax amount should be arrived at as per Rule 35 and such tax amount should be indicated in the tax invoice [as also required under Rule 46(m)] and other documents as envisaged under this section. In case goods are marked with “MRP” are sold at such MRP itself, then would it mean that (i) if tax is applicable on outward supply then such tax amount is also included in the MRP amount and sales at MRP tantamount to the amount of output tax being collected from customer or (ii) sale at MRP only means, tax on outward supply is to the account of seller and NOT collected from customer. Experts are of the view that Courts will be busy answering these questions in the case of MRP articles sold ‘at MRP’ (without mentioning tax amount in tax invoice) due to the departure from the principle in Maruti’s decision that seems visible in GST law. Reference may also be had to the implications of exempt supplies and suppliers under composition selling “MRP goods at MRP” and their potential disqualification under section 10(2). Recommended Articles –
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