GST on service supplied by restaurants through e-commerce operators –reg.

Circular No. 167 / 23 /2021 – GST

CBIC-190354/207/2021-TRU Section-CBEC
Government of India
Ministry of Finance
Department of Revenue

North Block, New Delhi,
Dated the 17th December, 2021

To,
The Principal Chief Commissioners/ Chief Commissioners/ Principal
Commissioners/ Commissioner of Central Tax (All) /
The Principal Director Generals/ Director Generals (All)

Madam/Sir,

Sub: GST on service supplied by restaurants through e-commerce operators
–reg.
The GST Council in its 45th meeting held on 17th September, 2021
recommended to notify ‚Restaurant Service‛ under section 9(5) of the CGST Act,
2017. Accordingly, the tax on supplies of restaurant service supplied through ecommerce operators shall be paid by the e-commerce operator. In this regard
notification No. 17/2021 dated 18.11.2021 has been issued.

2. Certain representations have been received requesting for clarification
regarding modalities of compliance to the GST laws in respect of supply of
restaurant service through e-commerce operators (ECO). Clarifications are as
follows:

Sl
No
IssueClarification
1Would ECOs have to still
collect TCS in compliance
with section 52 of the CGST
Act, 2017?
As ‘restaurant service’ has been notified under
section 9(5) of the CGST Act, 2017, the ECO
shall be liable to pay GST on restaurant
services provided, with effect from the 1st
January, 2022, through ECO. Accordingly, the
ECOs will no longer be required to collect TCS
and file GSTR 8 in respect of restaurant
services on which it pays tax in terms of
section 9(5).
On other goods or services supplied through
ECO, which are not notified u/s 9(5), ECOs
will continue to pay TCS in terms of section 52
of CGST Act, 2017 in the same manner at
present.
2Would ECOs have to
mandatorily take a separate
registration w.r.t supply of
restaurant service [notified
under 9(5)] through them
even though they are
registered to pay GST on
services on their own
account?
As ECOs are already registered in accordance
with rule 8(in Form GST-REG 01) of the CGST
Rules, 2017 (as a supplier of their own goods
or services), there would be no mandatory
requirement of taking separate registration by
ECOs for payment of tax on restaurant service
under section 9(5) of the CGST Act, 2017.
3Would the ECOs be liable to
pay tax on supply of
restaurant service made by
unregistered business
entities?
Yes. ECOs will be liable to pay GST on any
restaurant service supplied through them
including by an unregistered person.
4What would be the
aggregate turnover of
person supplying ‘restaurant
service’ through ECOs?
It is clarified that the aggregate turnover of
person supplying restaurant service through
ECOs shall be computed as defined in section
2(6) of the CGST Act, 2017 and shall include
the aggregate value of supplies made by the
restaurant through ECOs. Accordingly, for
threshold consideration or any other purpose
in the Act, the person providing restaurant
service through ECO shall account such services in his aggregate turnover.
5Can the supplies of
restaurant service made
through ECOs be recorded
as inward supply of ECOs
(liable to reverse charge) in
GSTR 3B?
No. ECOs are not the recipient of restaurant
service supplied through them. Since these are
not input services to ECO, these are not to be
reported as inward supply (liable to reverse
charge).
6Would ECOs be liable to
reverse proportional input
tax credit on his input goods
and services for the reason
that input tax credit is not
admissible on ‘restaurant
service’?
ECOs provide their own services as an
electronic platform and an intermediary for
which it would acquire inputs/input service on
which ECOs avail input tax credit (ITC). The
ECO charges commission/fee etc. for the
services it provides. The ITC is utilised by
ECO for payment of GST on services provided
by ECO on its own account (say, to a
restaurant). The situation in this regard
remains unchanged even after ECO is made
liable to pay tax on restaurant service. ECO
would be eligible to ITC as before.
Accordingly, it is clarified that ECO shall not
be required to reverse ITC on account of
restaurant services on which it pays GST in
terms of section 9(5) of the Act.
It may also be noted that on restaurant
service, ECO shall pay the entire GST
liability in cash (No ITC could be utilised for
payment of GST on restaurant service supplied
through ECO)
7Can ECO utilize its Input
Tax Credit to pay tax w.r.t
‘restaurant service’ supplied
through the ECO?
No. As stated above, the liability of payment of
tax by ECO as per section 9(5) shall be
discharged in cash.
8Would supply of goods or
services other than
ECO is required to pay GST on services
notified under section 9(5), besides the
restaurant service’ through
ECOs be taxed at 5%
without ITC?
services/other supplies made on his own
account.
On any supply that is not notified under
section 9(5), that is supplied by a person
through ECO, the liability to pay GST
continues on such supplier and ECO shall
continue to pay TCS on such supplies.
Thus, present dispensation continues for ECO,
on supplies other than restaurant services. On
such supplies (other than restaurant services
made through ECO) GST will continue to be
billed, collected and deposited in the same
manner as is being done at present. ECO will
deposit TCS on such supplies.
9Would ‘restaurant service’
and goods or services other
than restaurant service sold
by a restaurant to a customer
under the same order be
billed differently? Who shall
be liable for raising invoices
in such cases?
Considering that liability to pay GST on
supplies other than ‘restaurant service’
through the ECO, and other compliances
under the Act, including issuance of invoice to
customer, continues to lie with the respective
suppliers (and ECOs being liable only to
collect tax at source (TCS) on such supplies), it
is advisable that ECO raises separate bill on
restaurant service in such cases where ECO
provides other supplies to a customer under
the same order.
10Who will issue invoice in
respect of restaurant service
supplied through ECO -
whether by the restaurant or
by the ECO?
The invoice in respect of restaurant service
supplied through ECO under section 9(5) will
be issued by ECO.
11Clarification may be issued
as regard reporting of
restaurant services, value
and tax liability etc in the
GST return.
A number of other services are already
notified under section 9(5). In respect of such
services, ECO operators are presently paying
GST by furnishing details in GSTR 3B.
The ECO may, on services notified under
ction 9 (5) of the CGST Act,2017, including
on restaurant service provided through ECO,
may continue to pay GST by furnishing the
details in GSTR 3B, reporting them as outward
taxable supplies for the time being.
Besides, ECO may also, for the time being,
furnish the details of such supplies of
restaurant services under section 9(5) in Table
7A(1) or Table 4A of GSTR-1, as the case
maybe, for accounting purpose.
Registered persons supplying restaurant
services through ECOs under section 9(5) will
report such supplies of restaurant services
made through ECOs in Table of GSTR-1 and
Table 3.1 (c) of GSTR-3B, for the time being.

3. Difficulty, if any, in the implementation of this circular may be brought to the
notice of the Board.

 

Yours faithfully,

 

Anna Sosa Thomas
Technical Officer (TRU

Email: anna.thomas@gov.in

 

 

 

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