GST on salaries? A new ruling can cause a lot of confusion and litigation

• Companies and firms with branches in different states now have a new headache to deal with – charging GST on salaries of their head office staff.
  
• Experts suggest that this will effectively make salaries taxable under the purview of GST, which is in contradiction with the law.
  
• This could also lead to a flurry of notices from the GST authorities, and litigation that can be avoided.
  

The GST (Goods and Services Tax) regime requires firms to take separate registration for each state, and common expenses incurred by the head office, like marketing, advertising, legal services and travel expenses, for instance, are to be distributed to branch offices, usually based on their respective turnovers.

Now, a new tax ruling says the same shall apply to salaries paid to head office employees for the services provided to branch offices. Essentially, if you are in the Delhi head office of a company and your salary is ₹10,000 a month, your company has to say how much of the money paid to you is attributable to services rendered to, say, the Kolkata branch office. And, pay GST on that part of the salary.

While the employees don’t have to worry about this, the finance team will have a new headache.

Experts say this will create confusion and unnecessary litigation. “Salary is not under the purview of the GST law. This AAAR ruling essentially makes salaries taxable under GST, which is contradictory to the provisions of the law,” Jatin Arora, partner, Phoenix Legal, told Business Insider.

There was a similar ruling from Karnataka Authority of Advance Ruling 2019. The union government had said that it would provide a clarification in this matter but nothing has come through so far.

“As per Schedule I, only supply of goods and services between related parties would be subject to tax, whether with or without consideration. However, cost allocation is different from supply of service, and this would not fall under the purview of supply,” Abhishek Rastogi, partner, Khaitan & Co., told Business Insider.

He also further explained that this means that any cost allocation – in this case, salaries of head office staff – would not be taxable under GST.

Maharashtra AAAR’s ruling is a result of a request filed by Cummins India, seeking clarity on whether it should charge GST on allocation of salaries of its head office staff to branches.

“Due to this, there will be unnecessary confusion, leading to notices from the department and litigation,” Arora added, stating that the government should issue a clarification at the earliest to avoid a flurry of notices from the tax department to firms across the country.

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