{"id":7976,"date":"2022-08-04T03:32:10","date_gmt":"2022-08-04T02:32:10","guid":{"rendered":"https:\/\/www.klickongstworld.com\/blog\/?p=7976"},"modified":"2022-08-04T03:36:04","modified_gmt":"2022-08-04T02:36:04","slug":"gst-applicability-on-liquidated-damages-compensation-and-penalty-arising-out-of-breach-of-contract-or-other-provisions-of-law","status":"publish","type":"post","link":"https:\/\/www.klickongstworld.com\/blog\/gst-applicability-on-liquidated-damages-compensation-and-penalty-arising-out-of-breach-of-contract-or-other-provisions-of-law\/","title":{"rendered":"GST applicability on liquidated damages, compensation and penalty arising out of breach of contract or other provisions of law"},"content":{"rendered":"<p align=\"justify\">The CBIC has issued&nbsp;<em><strong>Circular No. 178\/10\/2022-GST dated  August 03, 2022<\/strong><\/em>&nbsp;for clarification regarding GST  applicability on liquidated damages, compensation and penalty arising out of  breach of contract or other provisions of law.<\/p>\n<p align=\"justify\">In certain cases\/instances, questions have  been raised regarding taxability of an activity or transaction as the supply of  service of agreeing to the obligation to refrain from an act or to tolerate an  act or a situation, or to do an act. Applicability of GST on payments in the  nature of liquidated damage, compensation, penalty, cancellation charges, late  payment surcharge etc. arising out of breach of contract or otherwise and scope  of the entry at para 5 (e) of Schedule II of Central Goods and Services Tax  Act, 2017 (hereinafter referred to as, &#8220;CGST Act&#8221;) in this context has been  examined in the following paragraphs.<\/p>\n<p align=\"justify\"><em>&#8220;Agreeing to the obligation to refrain  from an act or to tolerate an act or a situation, or to do an act&#8221;<\/em>&nbsp;has  been specifically declared to be a supply of service in para 5 (e) of Schedule  II of CGST Act if the same constitutes a &#8220;supply&#8221; within the meaning of the  Act. The said expression has following three limbs:-<\/p>\n<p align=\"justify\"><strong>a. Agreeing to the obligation  to refrain from an act<\/strong>&#8211;<\/p>\n<p align=\"justify\">Example of activities that would be covered by  this part of the expression would include non-compete agreements, where one  party agrees not to compete with the other party in a product, service or  geographical area against a consideration paid by the other party.<\/p>\n<p align=\"justify\">Another example of such activities would be a  builder refraining from constructing more than a certain number of floors, even  though permitted to do so by the municipal authorities, against a compensation  paid by the neighbouring housing project, which wants to protect its sunlight,  or an industrial unit refraining from manufacturing activity  during&nbsp;certain hours against an agreed compensation paid by a neighbouring  school, which wants to avoid noise during those hours.<\/p>\n<p align=\"justify\"><strong>b. Agreeing to the obligation  to tolerate an act or a situation<\/strong><\/p>\n<p align=\"justify\">This would include activities such a  shopkeeper allowing a hawker to operate from the common pavement in front of  his shop against a monthly payment by the hawker, or an RWA tolerating the use  of loud speakers for early morning prayers by a school located in the colony  subject to the school paying an agreed sum to the RWA as compensation.<\/p>\n<p align=\"justify\"><strong>c. Agreeing to the obligation  to do an act<\/strong><\/p>\n<p align=\"justify\">This would include the case where an  industrial unit agrees to install equipment for zero emission\/discharge at the  behest of the RWA of a neighbouring residential complex against a consideration  paid by such RWA, even though the emission\/discharge from the industrial unit  was within permissible limits and there was no legal obligation upon the  individual unit to do so.<\/p>\n<p align=\"justify\">The description&nbsp;<em>&#8220;agreeing to the obligation to refrain  from an act or to tolerate an act or a situation, or to do an act&#8221;<\/em>&nbsp;was  intended to cover services such as described above. However, over the years  doubts have persisted regarding various transactions being classified under the  said description.<\/p>\n<p align=\"justify\">Some of the important examples of such cases  are Service Tax\/GST demands on-<\/p>\n<p align=\"justify\">i.  Liquidated damages paid for breach of contract; <br \/>\n  ii.  Compensation given to previous allottees of coal blocks for cancellation of  their licenses pursuant to Supreme Court Order; <br \/>\n  iii.  Cheque dishonour fine\/penalty charged by a power distribution company from the  customers; <br \/>\n  iv.  Penalty paid by a mining company to State Government for unaccounted stock of  river bed material; <br \/>\n  v.  Bond amount recovered from an employee leaving the employment before the agreed  period; <br \/>\n  vi.  Late payment charges collected by any service provider for late payment of  bills; <br \/>\n  vii.  Fixed charges collected by a power generating company from State Electricity  Boards (SEBs) or by SEBs\/DISCOMs from individual customer for supply of  electricity; <br \/>\n  viii.  Cancellation charges recovered by railways for cancellation of tickets, etc. <br \/>\n  In some of these cases, tax authorities have  initiated investigation and in some advance ruling authorities have upheld  taxability.<\/p>\n<p align=\"justify\">In Service Tax law, &#8216;Service&#8217; was defined as  any activity carried out by a person for another for consideration. As  discussed in service tax education guide, the concept &#8216;activity for a  consideration&#8217; involves an element of contractual relationship wherein the  person doing an activity does so at the desire of the person for whom the  activity is done in exchange for a consideration. An activity done without such  a relationship i.e., without the express or implied contractual reciprocity of  a consideration would not be an &#8216;activity for consideration&#8217;. The element of  contractual relationship, where one supplies goods or services at the desire or  another, is an essential element of supply.<\/p>\n<p align=\"justify\">The description of the declared service in  question, namely, agreeing to the obligation to refrain from an act or to  tolerate an act or a situation, or to do an act in para 5 (e) of Schedule II of  CGST Act is strikingly similar to the definition of contract in the Contract  Act, 1872. The Contract Act defines &#8216;Contract&#8217; as a set of promises, forming  consideration for each other. &#8216;Promise&#8217; has been defined as willingness of the  &#8216;promisor&#8217; to do or to abstain from doing anything. &#8216;Consideration&#8217; has been  defined in the Contract Act as what the &#8216;promisee&#8217; does or abstains from doing  for the promises made to him.<\/p>\n<p align=\"justify\">This goes to show that the service of agreeing  to the obligation to refrain from an act or to tolerate an act or a situation,  or to do an act is nothing but a contractual agreement. A contract to do  something or to abstain from doing something cannot be said to have taken place  unless there are two parties, one of which expressly or impliedly agrees to do  or abstain from doing something and the other agrees to pay consideration to  the first party for doing or abstaining from such an act. There must be a  necessary and sufficient nexus between the supply (i.e. agreement to do or to  abstain from doing something) and the consideration.<\/p>\n<p align=\"justify\">A perusal of the entry at serial 5(e) of  Schedule II would reveal that it comprises the aforementioned three different  sets of activities viz. (a) the obligation to refrain from an act, (b)  obligation to tolerate an act or a situation and (c) obligation to do an act.  All the three activities must be under an &#8220;agreement&#8221; or a &#8220;contract&#8221; (whether  express or implied) to fall within the ambit of the said entry. In other words,  one of the parties to such agreement\/contract (the first party) must be under a  contractual obligation to either (a) refrain from an act, or (b) to tolerate an  act or a situation or (c) to do an act. Further some &#8220;consideration&#8221; must flow  in return from the other party to this contract\/agreement (the second party) to  the first party for such (a) refraining or (b) tolerating or (c) doing. Such  contractual arrangement must be an independent arrangement in its own right.  Such arrangement or agreement can take the form of an independent stand- alone  contract or may form part of another contract. Thus, a person (the first  person) can be said to be making a supply by way of refraining from doing  something or tolerating some act or situation to another person (the second  person) if the first person was under an obligation to do so and then performed  accordingly.<\/p>\n<p align=\"justify\"><strong>Agreement to do or refrain from  an act should not be presumed to exist<\/strong><\/p>\n<p align=\"justify\">There has to be an express or implied  agreement; oral or written, to do or abstain from doing something against  payment of consideration for doing or abstaining from such act, for a taxable  supply to exist. An agreement to do an act or abstain from doing an act or to  tolerate an act or a situation cannot be imagined or presumed to exist just  because there is a flow of money from one party to another. Unless there is an  express or implied promise by the recipient of money to agree to do or abstain  from doing something in return for the money paid to him, it cannot be assumed  that such payment was for doing an act or for refraining from an act or for  tolerating an act or situation. Payments such as liquidated damages for breach  of contract, penalties under the mining act for excess stock found with the  mining company, forfeiture of salary or payment of amount as per the employment  bond for leaving the employment before the minimum agreed period, penalty for  cheque dishonour etc. are not a consideration for tolerating an act or  situation. They are rather amounts recovered for not tolerating an act or situation  and to deter such acts; such amounts are for preventing breach of contract or  non-performance and are thus mere &#8216;events&#8217; in a contract. Further, such amounts  do not constitute payment (or consideration) for tolerating an act, because  there cannot be any contract: (a) for breach thereof, or (b) for holding more  stock than permitted under the mining contract, or (c) for leaving the  employment before the agreed minimum period or (d) for doing something leading  to the dishonour of a cheque. As has already been stated, unless payment has  been made for an independent activity of tolerating an act under an independent  arrangement entered into for such activity of tolerating an act, such payments  will not constitute &#8216;consideration&#8217; and hence such activities will not  constitute &#8220;supply&#8221; within the meaning of the Act. Taxability of these  transactions is discussed in greater detail in the following paragraphs.<\/p>\n<p align=\"justify\"><strong>Liquidated Damages<\/strong> <br \/>\n  Breach or non-performance of contract by one  party results in loss and damages to the other party. Therefore, the law  provides in Section 73 of the Contract Act, 1972 that when a contract has been  broken, the party which suffers by such breach is entitled to receive from the  other party compensation for any loss or damage caused to him by such breach.  The compensation is not by way of consideration for any other independent  activity; it is just an event in the course of performance of that contract.<\/p>\n<p align=\"justify\">It is common for the parties entering into a  contract, to specify in the contract itself, the compensation that would be  payable in the event of the breach of the contract. Such compensation specified  in a written contract for breach of non-performance of the contract or parties  of the contract is referred to as liquidated damages. Black&#8217;s Law Dictionary  defines &#8216;Liquidated Damages&#8217; as cash compensation agreed to by a signed,  written contract for breach of contract, payable to the aggrieved party.<\/p>\n<p align=\"justify\">Section 74 of the Contract Act, 1972 provides  that when a contract is broken, if a sum has been named or a penalty stipulated  in the contract as the amount or penalty to be paid in case of breach, the  aggrieved party shall be entitled to receive reasonable compensation not  exceeding the amount so named or the penalty so stipulated.<\/p>\n<p align=\"justify\">It is argued that performance is the essence  of a contract. Liquidated damages cannot be said to be a consideration received  for tolerating the breach or non-performance of contract. They are rather  payments for not tolerating the breach of contract. Payment of liquidated damages  is stipulated in a contract to ensure performance and to deter non-performance,  unsatisfactory performance or delayed performance. Liquidated damages are a  measure of loss and damage that the parties agree would arise due to breach of  contract. They do not act as a remedy for the breach of contract. They do not  restitute the aggrieved person. It is further argued that a contract is entered  into for execution and not for its breach. The liquidated damages or penalty  are not the desired outcome of the contract. By accepting the liquidated  damages, the party aggrieved by breach of contract cannot be said to have  permitted or tolerated the deviation or non-fulfilment of the promise by the  other party.<\/p>\n<p align=\"justify\">In this background a reasonable view that can  be taken with regard to taxability of liquidated damages is that where the  amount paid as &#8216;liquidated damages&#8217; is an amount paid only to compensate for  injury, loss or damage suffered by the aggrieved party due to breach of the  contract and there is no agreement, express or implied, by the aggrieved party  receiving the liquidated damages, to refrain from or tolerate an act or to do  anything for the party paying the liquidated damages, in such cases liquidated  damages are mere a flow of money from the party who causes breach of the  contract to the party who suffers loss or damage due to such breach. Such  payments do not constitute consideration for a supply and are not taxable.<\/p>\n<p align=\"justify\">Examples of such cases are damages resulting  from damage to property, negligence, piracy, unauthorized use of trade name,  copyright, etc. Other examples that may be covered here are the penalty  stipulated in a contract for delayed construction of houses. It is a penalty  paid by the builder to the buyers to compensate them for the loss that they  suffer due to such delayed construction and not for getting anything in return  from the buyers. Similarly, forfeiture of earnest money by a seller in case of  breach of &#8216;an agreement to sell&#8217; an immovable property by the buyer or by  Government or local authority in the event of a successful bidder failing to  act after winning the bid, for allotment of natural resources, is a mere flow  of money, as the buyer or the successful bidder does not get anything in return  for such forfeiture of earnest money. Forfeiture of Earnest money is stipulated  in such cases not as a consideration for tolerating the breach of contract but  as a compensation for the losses suffered and as a penalty for discouraging the  non-serious buyers or bidders. Such payments being merely flow of money are not  a consideration for any supply and are not taxable. The key in such cases is to  consider whether the impugned payments constitute consideration for another  independent contract envisaging tolerating an act or situation or refraining from  doing any act or situation or simply doing an act. If the answer is yes, then  it constitutes a &#8216;supply&#8217; within the meaning of the Act, otherwise it is not a  &#8220;supply&#8221;.<\/p>\n<p align=\"justify\">If a payment constitutes a consideration for a  supply, then it is taxable irrespective of by what name it is called; it must  be remembered that a &#8220;consideration&#8221; cannot be considered de hors an  agreement\/contract between two persons wherein one person does something for  another and that other pays the first in return. If the payment is merely an  event in the course of the performance of the agreement and it does not  represent the &#8216;object&#8217;, as such, of the contract then it cannot be considered  &#8216;consideration&#8217;. For example, a contract may provide that payment by the  recipient of goods or services shall be made before a certain date and failure  to make payment by the due date shall attract late fee or penalty. A contract  for transport of passengers may stipulate that the ticket amount shall be  partly or wholly forfeited if the passenger does not show up. A contract for  package tour may stipulate forfeiture of security deposit in the event of  cancellation of tour by the customer. Similarly, a contract for lease of  movable or immovable property may stipulate that the lessee shall not terminate  the lease before a certain period and if he does so he will have to pay certain  amount as early termination fee or penalty. Some banks similarly charge pre-  payment penalty if the borrower wishes to repay the loan before the maturity of  the loan period. Such amounts paid for acceptance of late payment, early  termination of lease or for pre-payment of loan or the amounts forfeited on  cancellation of service by the customer as contemplated by the contract as part  of commercial terms agreed to by the parties, constitute consideration for the  supply of a facility, namely, of acceptance of late payment, early termination  of a lease agreement, of prepayment of loan and of making arrangements for the  intended supply by the tour operator respectively. Therefore, such payments,  even though they may be referred to as fine or penalty, are actually payments  that amount to consideration for supply, and are subject to GST, in cases where  such supply is taxable. Since these supplies are ancillary to the principal  supply for which the contract is signed, they shall be eligible to be assessed  as the principal supply, as discussed in detail in the later paragraphs.  Naturally, such payments will not be taxable if the principal supply is exempt.<\/p>\n<p align=\"justify\"><strong>Compensation for cancellation  of coal blocks<\/strong><\/p>\n<p align=\"justify\">In the year 2014, coal block\/mine allocations  were cancelled by the Hon&#8217;ble Supreme Court vide order dated 24.09.2014.  Subsequently, Coal Mines (Special Provisions) Act, 2015 was enacted to provide  for allocation of coal mines and vesting of rights, title and interest in and  over the land and mines infrastructure together with mining leases to  successful bidders and allottees. In accordance with section 16 of the said  Act, prior (old) allottee of mines were given compensation in the year 2016 towards  the transfer of their rights\/ titles in the land, mine infrastructure,  geological reports, consents, approvals etc. to the new entity (successful  bidder) as per the directions of Hon&#8217;ble Supreme Court.<\/p>\n<p align=\"justify\">There was no agreement between the prior  allottees of coal blocks and the Government that the previous allottees shall  agree to or tolerate cancellation of the coal blocks allocated to them if the  Government pays compensation to them. No such promise or offer was made by the  prior allottees to the Government. The allottees had no option but to accept  the cancellation. The compensation was given to them for such cancellation, not  under a contract between the allottees and the Government, but under the  provisions of the statute and in pursuance of the Supreme Court Order.  Therefore, it would be incorrect to say that the prior allottees of the coal  blocks supplied a service to the Government by way of agreeing to tolerate the  cancellation of the allocations made to them by the Government or that the  compensation paid by the Government for such cancellation in pursuance to the  order of the Supreme Court was a consideration for such service. Therefore, the  compensation paid for cancellation of coal blocks pursuant to the order of the  Supreme Court in the above case was not taxable.<\/p>\n<p align=\"justify\"><strong>Cheque dishonor fine\/ penalty<\/strong><\/p>\n<p align=\"justify\">No supplier wants a cheque given to him to be  dishonoured. It entails extra administrative cost to him and disruption of his  routine activities and cash flow. The promise made by any supplier of goods or services  is to make supply against payment within an agreed time (including the agreed  permissible time with late payment) through a valid instrument. There is never  an implied or express offer or willingness on part of the supplier that he  would tolerate deposit of an invalid, fake or unworthy instrument of payment  against consideration in the form of cheque dishonour fine or penalty. The fine  or penalty that the supplier or a banker imposes, for dishonour of a cheque, is  a penalty imposed not for tolerating the act or situation but a fine, or  penalty imposed for not tolerating, penalizing and thereby deterring and  discouraging such an act or situation. Therefore, cheque dishonor fine or  penalty is not a consideration for any service and not taxable.<\/p>\n<p align=\"justify\"><strong>Penalty imposed for violation  of laws<\/strong><\/p>\n<p align=\"justify\">7.4 Penalty imposed for violation of laws such  as traffic violations, or for violation of pollution norms or other laws are  also not consideration for any supply received and are not taxable, which are  also not taxable. Same is the case with fines, penalties imposed by the mining  Department of a Central or State Government or a local authority on discovering  mining of excess mineral beyond the permissible limit or of mining activities  in violation of the mining permit. Such penalties imposed for violation of laws  cannot be regarded as consideration charged by Government or a Local Authority  for tolerating violation of laws. Laws are not framed for tolerating their  violation. They stipulate penalty not for tolerating violation but for not  tolerating, penalizing and deterring&nbsp;such violations. There is no  agreement between the Government and the violator specifying that violation  would be allowed or permitted against payment of fine or penalty. There cannot  be such an agreement as violation of law is never a lawful object or  consideration. The service tax education guide issued in 2012 on advent of  negative list regime of services explained that fines and penalties paid for  violation of provisions of law are not considerations as no service is received  in lieu of payment of such fines and penalties.<\/p>\n<p align=\"justify\">It was also clarified vide Circular No.  192\/02\/2016-Service Tax, dated 13.04.2016 that fines and penalty chargeable by  Government or a local authority imposed for violation of a statute, bye-laws,  rules or regulations are not leviable to Service Tax. The same holds true for  GST also. <br \/>\n    <strong>Forfeiture of salary or payment  of bond amount in the event of the employee leaving the employment before the  minimum agreed period<\/strong><\/p>\n<p align=\"justify\">An employer carries out an elaborate selection  process and incurs expenditure in recruiting an employee, invests in his  training and makes him a part of the organization, privy to its processes and  business secrets in the expectation that the recruited employee would work for  the organization for a certain minimum period. Premature leaving of the  employment results in disruption of work and an undesirable situation. The  provisions for forfeiture of salary or recovery of bond amount in the event of  the employee leaving the employment before the minimum agreed period are  incorporated in the employment contract to discourage non-serious candidates  from taking up employment. The said amounts are recovered by the employer not  as a consideration for tolerating the act of such premature quitting of  employment but as penalties for dissuading the non-serious employees from  taking up employment and to discourage and deter such a situation. Further, the  employee does not get anything in return from the employer against payment of  such amounts. Therefore, such amounts recovered by the employer are not taxable  as consideration for the service of agreeing to tolerate an act or a situation.<\/p>\n<p align=\"justify\"><strong>Compensation for not collecting  toll charges<\/strong><\/p>\n<p align=\"justify\">In the wake of demonetization, NHAI directed  the concessionaires (toll operators) to allow free access of toll roads to the  users from 8.11.2016 to 1.12.2016 for which the loss of toll charge was paid as  compensation by NHAI as per the instructions of Ministry of Road Transportation  and Highways. The toll reimbursements were calculated based on the average  monthly collection of toll. A question arose whether the compensation paid to  the concessionaire by project authorities (NHAI) in lieu of suspension of toll  collection during the demonetization period (from 8.11.2016 to 1.12.2016) was  taxable as a service by way of agreeing to refrain from collection of toll from  users.<\/p>\n<p align=\"justify\">It has been clarified vide Circular No.  212\/2\/2019-ST dated 21.05.2019 that the service that is provided by toll  operators is that of access to a road or bridge, toll charges being merely a  consideration for that service. During the period from 8.11.2016 to 1.12.2016,  the service of access to a road or bridge continued to be provided without  collection of toll from users. Consideration came from the project authority.  The fact that for this period, for the same service, consideration came from a  person other than the actual user of service does not mean that the service has  changed.<\/p>\n<p align=\"justify\"><strong>Late payment surcharge or fee<\/strong><\/p>\n<p align=\"justify\">The facility of accepting late payments with  interest or late payment fee, fine or penalty is a facility granted by supplier  naturally bundled with the main supply. It is not uncommon or unnatural for  customers to sometimes miss the last date of payment of electricity, water,  telecommunication services etc. Almost all service providers across the world  provide the facility of accepting late payments with late fine or penalty. Even  if this service is described as a service of tolerating the act of late payment,  it is an ancillary supply naturally bundled and supplied in conjunction with  the principal supply, and therefore should be assessed as the principal supply.  Since it is ancillary to and naturally bundled with the principal supply such  as of electricity, water, telecommunication, cooking gas, insurance etc. it  should be assessed at the same rate as the principal supply. However, the same  cannot be said of cheque dishonor fine or penalty as discussed in the preceding  paragraphs.<\/p>\n<p align=\"justify\"><strong>Fixed Capacity charges for  Power<\/strong><\/p>\n<p align=\"justify\">The price charged for electricity by the power  generating companies from the State Electricity Boards (SEBs)\/DISCOMS or by  SEBs\/DISCOMs from individual customers has two components, namely, a minimum  fixed charge (or capacity charge) and variable per unit charge. The minimum  fixed charges have to be paid by the SEBs\/DISCOMS\/individual customers  irrespective of the quantity of electricity scheduled or purchased by them  during a month. They take care of the fixed cost of generating\/ supplying electricity.  The variable charges are charged per unit of electricity purchased and increase  or decrease every month depending on the quantity of electricity consumed.<\/p>\n<p align=\"justify\">The fact that the minimum fixed charges remain  the same whether electricity is consumed or not or it is scheduled\/consumed  below the contracted or available capacity or a minimum threshold, does not  mean that minimum fixed charge or part of it is a charge for tolerating the act  of not scheduling or consuming the minimum the contracted or available capacity  or a minimum threshold.<\/p>\n<p align=\"justify\">Both the components of the price, the minimum  fixed charges\/capacity charges and the variable\/energy charges are charged for  sale of electricity and are thus not taxable as electricity is exempt from GST.  Power purchase agreements may have provisions that the power producer  shall&nbsp;not supply electricity to a third party without approval of buyer.  Such agreements which ensure assured supply of power to State Electricity  Boards\/DISCOMS are ancillary arrangements; the contract is essentially for  supply of electricity.<\/p>\n<p align=\"justify\"><strong>Cancellation charges<\/strong><\/p>\n<p align=\"justify\">A supply contracted for, such as booking of  hotel accommodation, an entertainment event or a journey, may be cancelled by a  customer or may not proceed as intended due to his failure to show up for  availing the same at the designated place and time. The supplier may allow  cancelation of supply by the customer within a certain specified time period on  payment of cancellation fee as per commercial terms of the contract. In case  the customer does not show up for availing the service, the supplier may retain  or forfeit part of the consideration or security deposit or earnest money paid  by the customer for the intended supply.<\/p>\n<p align=\"justify\">It is a common business practice for suppliers  of services such as hotel accommodation, tour and travel, transportation etc.  to provide the facility of cancellation of the intended supplies within a  certain time period on payment of cancellation fee. Cancellation fee can be  considered as the charges for the costs involved in making arrangements for the  intended supply and the costs involved in cancellation of the supply, such as  in cancellation of reserved tickets by the Indian Railways.<\/p>\n<p align=\"justify\">Services such as transportation travel and  tour constitute a bundle of services. The transportation service, for instance,  starts with booking of the ticket for travel and lasts at least till exit of  the passenger from the destination terminal. All services such as making  available an online portal or convenient booking counters with basic facilities  at the transportation terminal or in the city, to reserve the seats and issue  tickets for reserved seats much in advance of the travel, giving preferred  seats with or without extra cost, lounge and waiting room facilities at  airports, railway stations and bus terminals, provision of basic necessities  such as soap and other toiletries in the wash rooms, clean drinking water in  the waiting area etc. form part and parcel of the transportation service; they  constitute the various elements of passenger transportation service, a  composite supply. The facilitation service of allowing cancellation against  payment of cancellation charges is also a natural part of this bundle. It is  invariably supplied by all suppliers of passenger transportation service as naturally  bundled and in conjunction with the principal supply of transportation in the  ordinary course of business.<\/p>\n<p align=\"justify\">Therefore, facilitation supply of allowing  cancellation of an intended supply against payment of cancellation fee or  retention or forfeiture of a part or whole of the consideration or security  deposit in such cases should be assessed as the principal supply. For example,  cancellation charges of railway tickets for a class would attract GST at the  same rate as applicable to the class of travel (i.e., 5% GST on first class or  air-conditioned coach ticket and nil for other classes such as second sleeper  class). Same is the case for air travel.<\/p>\n<p align=\"justify\">Accordingly, the amount forfeited in the case  of non-refundable ticket for air travel or security deposit or earnest money  forfeited in case of the customer failing to avail the travel, tour operator or  hotel accommodation service or such other intended supplies should be assessed  at the same rate as applicable to the service contract, say air transport or tour  operator service, or other such services.<\/p>\n<p align=\"justify\">However, as discussed above, forfeiture of  earnest money by a seller in case of breach of &#8216;an agreement to sell&#8217; an  immovable property by the buyer or such forfeiture by Government or local  authority in the event of a successful bidder failing to act after winning the  bid for allotment of natural resources, is a mere flow of money, as the buyer  or the successful bidder does not get anything in return for such forfeiture of  earnest money. Forfeiture of earnest money is stipulated in such cases not as a  consideration for tolerating the breach of contract but as a compensation for  the losses suffered and as a penalty for discouraging the non-serious buyers or  bidders. Such payments being merely flow of money are not a consideration for  any supply and are not taxable.<\/p>\n<p align=\"justify\">Field formations are advised that while the  taxability in each case shall depend on facts of that case, the above  guidelines may be followed in determining whether tax on an activity or  transaction needs to be paid treating the same as service by way of agreeing to  the obligation to refrain from an act or to tolerate an act or a situation, or  to do an act. <\/p>\n<p align=\"center\"><strong><a href=\"https:\/\/www.klickongstworld.com\/uploads\/SGST\/CIRCULAR\/1659538292.pdf\">Klick here for the copy of the  Circular<\/a><\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"<p>2022\/06\/cbic.png<\/p>\n","protected":false},"author":1,"featured_media":7546,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[3],"tags":[],"_links":{"self":[{"href":"https:\/\/www.klickongstworld.com\/blog\/wp-json\/wp\/v2\/posts\/7976"}],"collection":[{"href":"https:\/\/www.klickongstworld.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.klickongstworld.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.klickongstworld.com\/blog\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.klickongstworld.com\/blog\/wp-json\/wp\/v2\/comments?post=7976"}],"version-history":[{"count":4,"href":"https:\/\/www.klickongstworld.com\/blog\/wp-json\/wp\/v2\/posts\/7976\/revisions"}],"predecessor-version":[{"id":7981,"href":"https:\/\/www.klickongstworld.com\/blog\/wp-json\/wp\/v2\/posts\/7976\/revisions\/7981"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.klickongstworld.com\/blog\/wp-json\/wp\/v2\/media\/7546"}],"wp:attachment":[{"href":"https:\/\/www.klickongstworld.com\/blog\/wp-json\/wp\/v2\/media?parent=7976"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.klickongstworld.com\/blog\/wp-json\/wp\/v2\/categories?post=7976"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.klickongstworld.com\/blog\/wp-json\/wp\/v2\/tags?post=7976"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}