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A non- Resident Seafare's Income Earned Outside India But Credited To His Indian NRE A/C By Employer Will Not Be Liable To Tax Under The Income Tax Act,1961

23 Jul,2018

1. Introduction

       The view stated in the title of the article (supra) has been expressed by the C- Bench of the C- Bench of the ITAT, Kolkata, in the case of Tarun kumar sarkar v. DY.Director  Of Income -3 (1) , Kolkata 2017 Taxpub (DT) 3872 (Kol ‘C’ –Trib): (2017 ) 166 ITD 125 (Kol-Trib).The decision has been picked up for this write –up because the AO’s decision in the case is contry to the CBDT’s Circulars No.13/2017, dt.11-4-2017 and No.17/2017 dt.20-4-2017 issued ofter the assessment.

2.Facts of the case

             The  assessee,a Marine Engineer by profession , for the AY  2011-12 filed his return of income ,showing an income of Rs.2,09,021 in the status of a ‘non–resident ‘.He was engaged with M/s Mercator Lines Ltd ., Singapore, as a Marine Engineer .During the previous year ,relevant to the AY 2011-12, he was paid a sum of Rs.23,71,727 by the employer company on different dates for his services  as a seafarer by credit to his  two NRE accounts  in india  with HSHC Bank. The assessee did not show this amount as income in the return as income  in the india filed in the status of a ‘Non-Resident’. The assessee’s case was that this  income was  received from  outside india in foreign currency and,therefore, claimed as exempt.The assessee stated  that he used to get  his contract to do services with india/foreign shipping company through  Indian agent and  that contrats were executed in india duly signed by the agent in india and himself before joining  the ship. But, he was to float on foreign water to render services during the courses of voyage and accordingly, when he will stay more than 182 days outside india or on foreign water,his  residential status will be treated  as ‘Non –resident’ as per provision of law and his salary income ,which are received out side india  in foreign currency also will not be taxable under section 5 of the Act .The AO accepted the residential  status of assessee as non-resident after verification  of copy of passport  and other details  submitted . The assessee claimed that as per  provisions of law ,salary income , which is received outside india  in foreign issued show cause notice to the assessee as to why the remuneration received in india should not be  brought to tax in terms of section 5(2)(a) of the Act. However, before examining the assessee’s defence to the AO’s notice ,it is relevant to examine the provisions of section 5(2)(a) of the Income Tax Act,1961 (Act).

 

 

    3. Section 5(2)& (b) of the Act

             Clauses (a) and (b) of section 5(2)  of the Act read as under –

             “(2) Subject to the provisions  of this Act ,the total income of any previous  year of a person , who is a non-resident, includes all income from whatever source derived , which-

              (a) is received or is deemed to be received in india in such year by or on behalf of such person ;0

               (b) accrues or arises or is deemed to accure or arise to him  in india  during such year”

Explanation  2 to section 5(2) provides  that income,which has been included in the  total income of a person on the basis that it has accrued or arisen or is deemed to have accrued or arisen to him shall not again be so included on the basis that it is received  or deemed to be received  by him in india.

4.Analysis of section 5(2)(a)

       From the foregoing extract of section 5(2)(a),it could be seen that section  5 of the Act provides  for  charge  of income  tax on accrual  or receipt  basis . Explanation 2 to section 5(2) provides that if an income has been subject of taxation  on accrual basis , it  cannot again be taxed on receipt  basis. The section ,however , does nit give any indication  as to in respect  of what  income ,the charge shall be on the receipt  basis and on what income  the charge  shall be on accrual basis . Obviously , this would depend on the factual matrix.

5. Appraisal of the Tribunal’s  decision

      With the above background  of legal provisions, the tribunal’s decision can be examined.

(i)AO’s case

      According to the AO, the  provisions of section 5(2)(a) of the Act state that income from whatever  source derived, which is received in india  in such year by or on behalf  of such  person shall be  included  in the total income  of any previous  year  of such person. He  further observed  that the said sextion  does  not mention  anything  about Indian  currency. The  section specifically states  that  any income received or deemed to be received in india taxable in  india.He observed  that the  law states that the  income received in india is taxable

In india in all cases (whether accrued in india or elsewhere), irrespective  of residential  status  of the assessee. He also observed that it is  significant  to  know the  meaning  of income received  in india . if the place where the  recipient  gets the money (on first occasion) under his control ,is in india,it is said  be income  received in india. In the instant  case ,all the  income was remitted  by the employer to the bank  accounts of the assessee maintained in india .therefore, the AO added a sum  of Rs .23,71,727 as income chargeable to tax in india. In support of his proposition , he placed of Capt . A.L.Fernandes v. ITO (2002) 81 ITD  203(Mum) (TM) whrerin it was held that teh salary received by the assessee in india  was taxable under section 5(2)(a) of  teh Act.

(ii)CIT (A)’s decision

     The  assessee claimed before  the CIT (A) that teh AO’s decision is wrong,interalia, on the  ground that he was under employment of a foreign  company and serevices  were  rendered outside India. For  The services rendered by the assessee outside India ,the entire payment of salary made by the foreign  company  in US$ and remittance was  made  to the  NRE account  of the assessee in india . The meaning   of section 5(2) (a) or the  Act. Should  be interpreted only in the  context of income  received  in india  currency  in india.There is a distinction between receiving money and transfer of money . The distinction  between receiving money and transfer of money.the  distinction  is that where a foreign company  makes payment  to the  non-resident for services rendered outside  india , the foreign currency to the assessee who is a non- resident  and the money in foreign  received  by the assessee not in india as because the point po payment by the company  is in foreign land & the point of receipt  by the assessee should  be  taken from the of payment. Mere remittance or transfer of the payments by the foreign co in the NRE account of the assessee in india that also in foreign exchange shall not be considered as income  received  in india  & larger interpretation to the  section would render it otiose.

 

                 The CIT (A) did not feel convinced with assessee (appellant before him) and confirmed AO’s order . Hence ,the assessee filed appeal before the  income tax Appellate Tribunal  (Tribunal ,for short,in  later  discussion).

(iii) Tribunal’s decision

    The Tribunals  has decided the appeal in favour  of the  case of the assessee , inter alia , on the following grounds.

     (i) Thuogh  the third  Member’s decision  in the case of capt .A.L.Fernandes v. ITO (2002)  81 (Mum) (TM), could be said to support the AO’s case , but More important  are the CBDT’s Circulars (infra), which read as under  and are binding  on the AO’s:-

1st circular

                “Section  5 of the act –income- Accrual  of –Clarification regarding liability  to income tax in  india for  a non-resident seafarer receiving  remuneration  in NRE  (non –resident external) account maintained  with an  Indian Bank

Circular  NO. 13/2017 (F.No500/07/2017- FT & TR –V) dt 11-4-2017 (as corrected by Circular  No 17/2017(F.No 500/07/2017-FT& TR- V) dt.26-4-2017)

 Represent have been received  in the board  that income  by  way of salary received  by non- resident seafarers for services  rendered outside  india on-board foreign ships,are being  subjected  to tax in india for the reason  that the salary has been received by the seafarer.

2. The matter  has been examined  in the board. section 5(2)(a) of the Act  provides that only such income of a non- resident  shall be subjected  to tax in india that is  either received  in india. It is hereby clarified that salary accrued  to a non-resident seafarer  for services rendered out side india  on a foreign  going ship (with indian flag or foreign  flag) shall not be included in the NRE account maintained with an indian bank by the seafarer".

2nd circular

  "section  5 of the act - income -accrual  of - clarification  regarding liability to income - tax in india  for a non-resident seafarer receiving remuneraton in NRE (non-resident external) account with  an indian bank -  Corrigendum to circular  NO.13/2017(F.NO.500/07/2017-FT&TR-V)  dt.11-4-2017)  Circular NO.17/2017(F.NO.500/07/2017-FT&TR-V) dt. 26-4-2017)

In the 4 of the paragraph No. 2 of the captioned circular, the words "Foreign Ship " may be "foreign going ship (with Indian  flag or foreign  flag)".

(iv) Final  summing up by the tribunal

     According to the Tribunal, a perusal  of the Circulars reffered to above  shows  that salary accrued to a non-resident seafarer for services rendered outside india on a foreign  going ship (withindian flag or foreign flag) shall not be included in the  total income merely because the said salary  hsa been crtedited in the NRE account maintained with an indian bank by a seafarer.Remittance  of salary into NRE account maintained with an indian Bank by a seafarer could bea two types:

 (i) employer directly creditng slary to the NRE account  maintained  with an Indian bank by the seafarer '

(ii) employer directly creding salary to the account maintained outside India by the seafarer transfering such money to NRE account maintained by him in india .the latter remittance would be  outside the purview of provisions of section 5(2)(a) of the Act as what is remitted  is not 'Salary  income' but a mere transfer of assessee's  fund from one bank account to another ,which does not give rise to 'income'.It ios not clear as to whether the expression 'merely because ' used in the Circular refers to the former type of remittance  or the latter.To this extent, the circular  is vague.

However, giving the benefit of doubt to the assessee ,the Tribunal has said that inthe case before it, the employer has directly credited the salary  for services rendered  outside India into the NRE bank account as it does not  specify as to whether the circular covers either of the situations contemplated  above. Hence, we deem it fit to give the benifit of doubt to the assessee by holding that the circular covers both  teh situations  referred to above. The result of such interpretation of teh circular would  be that the provisions  of section 5(2)(a) of the Act is rendered redundant. Be that as it may,it is well settled  that the circulars issued by CBDT are binding on the revenue authorities . This position has  been confirmed by the Apex  Court in the case of Commissioner  of Customs  v.Indian Oil Corpn .Ltd .2004 Taxpub (DT) 1391 (SC) : (2004) 267 ITR 272 (SC) wherein their Lordships examined the earlier decisions of the Apex  Court  with regard to binding nature of the circulars and laid down  that when a circular issued by the Bourd  remains of the circulars issued by the Board remais  in operation then the revenue is bound by it  and cannot be allowed  to plead  that  it is contrary   to the terms of the statute.Accordingly,the grounds raised by the assessee are allowed.Hence the Tribunal allowed the assessee’s appeal.

Logically also,the Tribunals decision  seems to be correct The salary  accrued  to the assessee for services rendered outside  territorial  waters  when his status was  that of  non- resident, about  which  there is no  dispute .The salary having accrued  outside territorial  waters, whether he rerceives  it so on his behalf should make no difference.If at all, it could  only  be a technical  non-compliance, for which the assessee need  not be subjected  abroad  when it is squarely  covered  by teh CBDT’s circulars. Hence,it  is respectfully  said that the Tribunal  has reached to a correct conclusion  though through  a circuitous route.


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Allowability Of Expenditure Incurred By Pharma Companies On Medical Conferences.

23 Jul,2018

Recently the Delhi high Court in Bostom Scientific India (p) Ltd.v.Asst.CIT 2017 Tax Pub (DT) 3985  (Del –HC) has give it’s verdict regarding allowability of expenditure incurred by pharma companies on sponsoring medical conference  in and outside India. The learned  author analyses the impugned issue in the light of this recent verdict.

Background

           It is general practice  of pharma companies to sponsor and conduct medical conferences  in & outside  India and for this purpose these companies also make arrangements  for travel and accommodation  of doctors  attending the conferences. In a recent past, a serious  controversy  arose as regards allowability  of expenditure  incurred b pharma  companies for organising such conferences. These expenditure  incurred by pharma  companies  for organising such conference.these expenditure are claimed  to be allowable as business expenditure for being incurred for  business purpose, however, the department tends to disallow  the same by invoking Explanation 1 to section 37 (1).

  1. Explanation 1 to section 37(1) disallow illegal expenditure

              The Finance  (No. 2) Act, 1998 has inserted an Explanation to section 37(1), with  retrospective  effect from 1-4-1962, so as to clarify  that any expenditure incurred by an assessee for any purpose which is an offence or which is  prohibited by law shall not be deemed to have been incurred for the purpose of business or profession and no deduction or allowance shall be made in respect  of such expenditure.

  1. Nature of expenses incurred  by pharma companies

             The pharma companies incr expenditure to sponso and conduct doctors’  conferences , to distribute  its product amongst  doctors  as free   samples, to give  gift  articles to  doctors ,  etc. These expenditure  are classified as advertisement  and sales promotion  expenditure and claimed  to be  allowable on the ground of being incurred wholly and  exclusively for  the  business purposes.

  1. CBDT’s clarification as regards allowability of expenses incurred in providing freebies to medical  practioner

              The  Medical council of India in excersise  of its statutory powers amended the Indian medical Council  (Professional Conduct, Etiquette  and  Ethics) Reguations, 2002 (the Regulations ) on 10-12-2009  imposing a prohibition on the medical practitioner & their professional associations   from taking  any  gift  travel facility , hospitality, cash of monetary  grant from the pharmaceutical  and allied health sector  industries.

            Section  37(1) of the Income Tax Act provides for deduction  of any revenue  expenditure   (other  than those failing under sections  30 to 36) from the  business Income  if such expenses is laid out/expended  wholly or exclusively  for the purpose  of business income if such expense  is laid out/expended wholly or exclusively for  the  purpose  of business or  profession. However,the explanation  appended to this sub-section denies claim of any such expense, if the same has been incurred for a purpose  which  is either an offence  or prohibited  by law.

          Thus the  of any expense incurred in providing above  mentioned  or similar freebies in violation  of the provisions of Indian  medical Council (Professional  Conduct Etiquette  and  Ethics ) Regulations, 2002 shall  be inadmissible  under  section  37(1)  of the Income Tax  Act  beingan expense  prohibtited by the law. This disallowance shall be made in the  hands of such pharmaceutical  or  allied health sector  industries  or other  assessee  which has provided aforesaid freebies  and claimed  it as a deductable  expense in it’s  accounts  against  income.

           It is also clarified  that the  sum equivalent to value of freebies enjoyed  by the aforesaid  medical  practitioner  or  professional  associatiosns  is also  taxable  as business  income  or income  from the other sources, as teh case may be,depending  on the facts  of each case.The assessing officers of such  medical practitioner  or professional  associations  should  examine the same and take an appropriate action.

             However,the Indian  Medical  Council (Professional  Conduct, Etiquette and Ethics) Regulations,2002 which  has been amended on 10-12-2009 prohibits  medical practitioners and their professional  associations  from  taking any  gift, travel  facility, hospitality, cash  or monetary  grant from the  pharmaceutical and allied health sector industries.

                Thus, the expenditure incurred on freebies are disallowed on the ground of being incurred  in violation of the provision  of Indian medical  Council ( Professional  Conduct, Etiquette  and Ethics) Regulations, 2002.- circular  No. 5/2012,dt.1-8-2012.

  1. Judical  controversy as regards allowability  of expenditure  incurred  by pharma companies

           In live Healthcare  Ltd.  v. DCIT (2016) 161 ITD  63 (Mum),the Mumbai  Bench  of the Tribunal  held that the expenditure on foreign travel and  accomdation  of doctors  and their  spouses was incurred  with  the  intent and the objective of profiteering form the  distribution  and entertainment that had a direct nexus with promoting  the sales  and profitability which made such expenditure violative  of the provisions of  the said regulations  of 2002.It held that the expenditure was incurred  to seek favours  from the doctors  by way of recommendation of  the company’s  product  which  was an illegal gratification ,was against public  policy,was unethical  and was prohibited  by law. Accordingly,the expenditure in question was liable for disallowance.

          However  in PHL Parma (p)  Ltd. v. ACIT (2017) 163 ITD 10(Mum),the decision  was given in favour  of the assessee by observing that the  code  of conduct has meant  to be followed  and adhered to by the medical practironers and doctors  alone and  did  not apply in any manner to pharmaceutical companies. The  Indian  Medical Council did not  have any jurisdiction  nor had any authority upon the pharmaceutical companies and could not have  prohibited  such  companies  in conduct of  their  business. The  CBDT in issuing  Circular  No. 5, dt.  1-8-2012 had  enlarged the scope of the said Regulations by  applying  it to the pharmaceutical  companies without any enabling  provisions to do so. Further  the circular in any  case could not be reckoned retrospectively  i.e., it could not be applied  before the date of its issue, i.e.,  on 1-8-2012.

            Thus the expenditure  incurred by the assessee  company was in the nature  of sales and  business  promotion  and was to be allowed; the gift articles bore the logo of the assessee and could not be held to the freebies,the free samples proved  the  efficacy of the products  of the  products  of the company and again were not in violation of the said Regulations  framed  by the Medical Council  of India.

  1. Applicability of CBDT Circular No. 5/2012

             In Syncom Foundations  (I) Ltd.  ( IT  PPEAL Nos. 6429  & 6428  (Mum) of 2012, it was observed  that CBDT circular  would not be applicable in the assessment years 2010-11  and 2011-12 as it  was introduced  w.e.f. 1-8-2012. Similarly  it was held in UCB India  (P)  Ltd.v. ITO (IT Appeal No. 6681 (Mum) of 2013, dt 13-5-2016), that the CBDT circular colud not have a retrospective  effect.

  1. Recent decision of delhi High Court in Boston Scientific India (P) Ptd.’s  case

               In Boston Scientific  India (P) Ltd v. Asstt. CIT 2017 Tax Pub (DT) 3985 (Del-HC), the assessing  officer on the specific heads of ‘advertisement and business promotion’  and travel related expenses ‘ made the following  disallowances :

            (i) Expenditure  of Rs. 13,14,548  was stated  to be  constituting freebies provided to medical  consultants and other doctors, disallowable   in view of Explanation  1 to section  37(1) of the Act , read with CBDT Circular No.  5/2012, dt.1-8-2012.

            (ii) Expenditure of Rs  19,06,000 incurred on conducting  seminars conventions, meetings, etc., for the purpose of Appellant’s business.

This  was disallowed  on the ground that details  were scanty, despite ample opportunity being given  to the assessee .

             (iii) Expenditure  of Rs  8,00,000  incurred  on sponsorship  for organizing conference/seminor. This was disallowed on the ground that the payment was made after the event had place.

On appeal before ITAT , it was held that as the assessee  had incurred expenses in the garb of marketing  the cardiac machine, onus  was upon the assessee to prove that the expenses incurred did not  violate any law that may be applicable. The burden lies uopon the assessee which has not been discharged  by evidences/materials.  Merely by placing the bills of payments, the travel details, the hotel details , where the doctors  were stationed , and the seminars / conferences  that were actually attended by such doctors. Assessee had also not demonstrated  that the doctors by participating  in such conferences and accepting the hospitality  extendedby it (the assessee ) have not contravened any MCI Regulations.

          The High Court ,however, said that the ITAT placed an unfair burden on the assessee to prove that the above expenses was incurred  bona fide for the  business  purpose of the assessee. The assessee had placed before the ITAT  all the relevant details thereby discharging the initial  onus. Thereafter,it was  open to the Revenue  to prove to the contrary . It was not possible for the assesee  to show  that  doctors “actually  delivered  any lectures, attented any meetings for, providing training  courses and seminars for assessee, etc.      

            As regards  other disallowances, it was held that since the ITAT proceeded on  and conjectures and failed to deal with  the contentions of the assessee in that regard , it is only fair that the ITAT  considers the entire appeal of the assessee  on merits afresh.

            Thus, the High Court rendered decision in favour  of assessee and against  the revenue and  all the contentions of the  assessee raised  in the appeal before the ITAT  would be considered afresh.

    8. Conclusion

       The decision of the Delhi High Court has provided some rays of hope in favour of Pharmaceutical Companies for doctors. If relief is  provided, it wil be of great  help in sharing  and upgrading  knowledge in the field of medical science and ultimately whole mankind would  get benefitted therefrom.


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Can Accommodation Services Be An Inter-state Supply.

23 Jul,2018

Accommodation services are under the purview of tax net since a long time It was a handsome source  of revenue under service tax law and the legacy is continuing in refined manner,even under GST  law.

1.Introduction

                    Accommadation service is the service to provide a place to live or stay, it has been introduced in the service tax net since positive  list regime.The same is carried forward in the GST law also.Under GST law there is classification  of services  and  accordingly  accomdation services have been classified into the  various categories according to the practice  prevailing in the industry.

2. Classification

                   Accommodation  services have been classified under HSN/SAC 9963 wherein the further classification ia as under.

Heading/Group

Service Tariff Code (HSN/SAC)

Description of Service

99631

996311

Room or unit accomdation  services provided by Hotels, INN,Guest House , club, etc

 

996312

Camp Site Services

 

996313

Recreational an vocational camp services

99632

996321

Room or unit accomdation  services for students in student residences

 

996322

Room or unit accomdation  services provided by Hotels, Capms, Paying Guests, etc.

 

996329

Other room or unit accomdation services not specified else where

 

 

 

3.Nature of supply

                 Accommodation services are generally provided at the premises used for providing  accomdation services. Since the GST is destination based consumption  tax, therefore, the place of supply of accomdation  services  is  the place where the property used forproviding such services is situated and the nature of supply is intra – State supply. However, before  reaching  at the conlusion we need to understand  the relevantprovisions of the GST law.

             The relevant provisions of law determaining  the nature of services  are coverd under the provisions of section 8 and setion 12 of the IGST Act,2017 read together.

             According to setion 8(2) of the IGST Act,2017  supply of  services where the  location  of the supplier and the place  of  supply of services are in the same  State  or the same Union  territory  shall be  treated as intra-state supply.

            According to setion 12(3)(b) of the IGST Act,2017, the place of supply of service by way of lodging accomdation by a hotel, inn, guest house ,home  stay , club or campsite, by whatever  name called  and including  a house boat or any other vessel shall be the location  at which the immovable property  or boat or vessel, as the case may be, is located or intended to be located.      

             Thus, on a combined reading  of the above two provision,one can easily figure out the nature of supply of accomdation services is intra-State supply.      

4.Whether accomdation services can be an inter-State  supply

             Although by referring  to the provisions cited above,  it can be  inferred that the  basic philosophy of implematon of destination   based consumption tax goes in line of taxing accommodation  services as intra-State  supply. Howeve, the following provisions of IGST Act,2017 are worth noting-

(a)Provisio to section 8(2) : The said provision reads as –“the  intra-State supply of services shall not include supply of services shall not include  supply of services to or by a Special Economic Zone developer or a Special Economic  Zone unit”.   

(b) Section 7(5)  (b) : Supply of goods or services or both to or by a Special Economic Zone developer  or a Special Economic Zone unit shall be treated to be a supply of goods or services or both in the  course of inter –State trade or commerce.

The direct implication of the above provisions on accomdation services is that the said services  if provided to any unit in SEZ shall not be considered  as intra-State supply. In other words, it shall be considered  as inter –State  supply.

 

 Hence, it can be fairly concluded that the accommodation services when provided to any unit in SEZ or by unit in SEZ evolves a concept divergent  to the basic intent of the GST  law of taxing  the services  on consumption  basis.Now  the question that flashes in the minds  is the need of such  a provision. The purpose  of introduction  of such provison can be  understood  with the provisions of section  16 of the IGST Act, 2017

         Implication  of sections  7(5), 8(2) and 16 of the IGST Act, 2017

        The implication of sections 16  and 8(2) can be understood i two parts. In one part the supplier of services  is outside the SEZ and in other part the supplier of services is in the SEZ. The impact on both the transaction shall be different.

(i) Supply to SEZ – Zero- rated supply

             Accordingly to section 16 of  the IGST Act, 2017, “zero-rated supply “ means any of the following supplies of goods or services or both namely :- (a) export of goods or services or both; or (b) supply of goods or services or both to a Special Economic  Zone developer  or  a   Special  Economic Zone  unit.

            The provision stated in section 16 clearly mandates  that the accommodation services provided to SEZ developer  or to a unit in SEZ shall be treated as zero-rated supply.  To put it differently, the  same shall be considered  at par with export of services. Thus, such services shall fall under zero –rated supply under GST law  and shall be eligible for benefits attributed to zero rated supplies including refund of  taxes paid on the relevant , services,subject  to the other provisionsof GST law.

(ii) Supply by SEZ-Inter-State-supply

                            On a close reading of section 8(2)  and section 16 as mentioned above, it can be inferred that accomdation services provided by the unit  in SEZ to any person  outside SEZ shall be treated  as inter-State supply. Meaning thereby that the said services provided by SEZ shall be considered as inter-State  supply and IGST shall be considered  as inter –State supply and IGST shall be chargeable on the same.

(iii) Supply within  SEZ–Zero–rated supply        

                            Since in case of supply within SEZ the recipient shall always  be in SEZ, therefore, such  supply shall always fall within the meaning  of zero-rated supply.Hence,supplies within SEZ shall be eligible for benefits at par with the benefits available to zero –rated supply.

5. Conclusion 

          Accomdation services are generally taxed as intra-state supply, however the law  contains the relevant provisions for  treating the same as inter-state supply also. Thus, before reaching at any conclusion about the place of supply, it is essential to refer the lwa as a whole and relevancy of sections 7(5) and 8(2) cannot be undermined.


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