Understanding GST on Notified Services Provided Through E-commerce Platforms Under Section 9(5)
Section 9(5) of the CGST Act mandates e-commerce operators (ECOs) to pay GST on specific services, such as restaurant, accommodation, and transport services, supplied through their platforms. This shifts the tax liability from the actual service provider to the ECO, treating the operator as the supplier under a reverse charge mechanism. ECOs must register under GST and file GSTR-3B, Table 3.1.1, while the actual suppliers may benefit from threshold exemptions. Recent updates clarify penalty applicability for ECOs under Section 122(1B).
Section 9(5) of the Central Goods and Services Tax (CGST) Act outlines specific provisions for services offered via e-commerce operators. For businesses providing services like restaurant services (including cloud kitchens), housekeeping, accommodation, and motor cab services through an e-commerce platform, the responsibility for paying Goods and Services Tax (GST) lies with the e-commerce operator.
Latest Updates
As of July 23, 2024, amendments to Sub-section (1B) of Section 122 of the CGST Act were proposed in the Union Budget 2024. These changes restrict the application of this sub-section to e-commerce operators who are required to collect tax at source under Section 52 of the Act. This amendment is effective retrospectively from October 1, 2023, the date the sub-section initially came into force. These provisions will become legally binding once officially notified by the CBIC (Central Board of Indirect Taxes and Customs).
Under Section 9(5), the e-commerce operator is considered the supplier and is liable to pay tax on these services, as if they were directly providing them.
Applicability of Section 9(5) of CGST Act
Section 9(5) specifically targets certain service categories where the e-commerce operator is responsible for paying GST when these services are rendered through their platform. These services include:
- Passenger transport services
- Housekeeping services
- Restaurant services (including cloud kitchens)
- Accommodation services
Regardless of whether the actual service provider is GST-registered, e-commerce operators are obligated to pay tax as if they were the supplier, operating under the reverse charge mechanism. Supplies under this section are primarily intra-state transactions.
Previously, restaurants and cloud kitchens offering services through e-commerce operators like Zomato or Swiggy were responsible for their own GST. However, since January 1, 2022, these e-commerce operators (e.g., Zomato, Swiggy) are liable to pay GST under the reverse charge mechanism. This tax, set at a 5% rate, must be paid via the electronic cash ledger, irrespective of the restaurant's GST registration status. Input Tax Credit (ITC) cannot be claimed in such instances.
Invoices for services notified under Section 9(5) must be issued by the e-commerce operator. If an order includes a combination of services, some of which fall under Section 9(5), the e-commerce operator must issue a separate invoice for the Section 9(5) component.
If an e-commerce operator lacks a physical presence in the taxable territory, the tax liability falls on any person representing the operator in that territory. If there is neither a physical presence nor a representative, the e-commerce operator must appoint a person responsible for tax payment.
Distinguishing Section 9(5) from Section 52 of the CGST Act
Here is a comparison of key differences between Section 52 and Section 9(5) of the CGST Act:
| Basis | Section 52 | Section 9(5) |
|---|---|---|
| Collection of TCS/Tax Liability | TCS is collected by the e-commerce operator on the net value of taxable supplies made by other suppliers through its platform. | The e-commerce operator is liable for tax and is treated as the supplier of those services. |
| Registration | Compulsory registration is required for both the e-commerce operator and the actual supplier. | The actual supplier can opt for voluntary registration, but the e-commerce operator must mandatorily obtain registration. |
| Threshold Exemption | Not applicable. | Applicable for the actual supplier. |
| Compliance | Form GSTR-8 must be filed monthly, including collected TCS and supply details. Details in GSTR-8 are reflected in Form 2A of each supplier. | Form GSTR-3B must be filed, specifically Table 3.1.1. |
| Reverse Charge Mechanism | Not Applicable. | Applicable. |
GST Registration for E-commerce Operators Under Section 9(5)
E-commerce operators are required to obtain GST registration under CGST rules, regardless of their annual turnover. However, the actual suppliers of services covered by this section may be eligible for a threshold exemption, meaning they are not required to register even if their turnover exceeds the standard threshold limit.
Compliance and Return Filing for E-commerce Operators Under Section 9(5)
For services such as housekeeping, accommodation, restaurant, and passenger transport, when provided through an e-commerce operator, the GST liability rests with the operator. A new Table 3.1.1 in GSTR-3B has been introduced to report all supplies made under Section 9(5) by both the supplier and the e-commerce operator, which became effective on August 1, 2022.
For the E-commerce Operator
Supplies subject to Section 9(5) must be reported in Table 3.1.1 (i). The e-commerce operator must pay the tax in cash, as payment via Input Tax Credit (ITC) is not allowed. These supplies should not be included in Table 3.1(a) of GSTR-3B.
For the Supplier of Services (Registered Person)
Supplies falling under Section 9(5) must be reported by the service supplier in Table 3.1.1 (ii). These supplies should also be excluded from Table 3.1(a) of GSTR-3B. Since the e-commerce operator is responsible for the tax liability, the supplier is not required to make any tax payments for these specific transactions.
Applicability of Section 122(IB)
According to updates from the 53rd GST Council meeting, penalties under Section 122(1B) for defaulting on Tax Collected at Source (TCS) compliance will not apply to e-commerce operators other than those liable for TCS under Section 52. Consequently, e-commerce operators subject to Section 9(5) will face general penalties for non-compliance, rather than the specific penalties outlined in Section 122(1B).