A. Background:

SEZ Scheme was introduced by Government of India with objective to provide an internationally competitive and hassle-free environment for manufacturing activities, earning of foreign exchange, attracting Foreign Direct Investment (FDI), generation of employment and to facilitate transfer of technology.

SEZ are considered to be growth engines to boost manufacturing, augment exports, generate large scale employment and creation of world class infrastructure.

Read more: An overview on Procedure for Setting up of SEZ

1. Amendment to Regulation 13 (Reporting Requirements) of FEMA FDI Regulations,2017

With effect from 1^st September,2018 reporting requirement for any investment made in India by a person resident outside India has undergone following amendments:

• Reporting requirement of Advance Remittance Form (ARF) within 30 days of receipt of amount for issue of capital instruments has been omitted.
• An Indian entity or an investment Vehicle making downstream investment in another Indian entity which is considered as indirect foreign investment for the Indian entity in terms of Downstream Investment (Regulation 14 of FEMA FDI Regulations,2017) shall file “Form DI with the Reserve Bank of India (RBI) within 30 days from the date of allotment of capital instruments”.
• An Investment Vehicle which has issued its units to a person resident outside India shall file “Form InVi with the RBI within 30 days from the date of issue of units”.

Reference: G.S.R. 823(E) dated 30^th August, 2018 issued by RBI.

Read more: FEMA Updates for the month of October 2018

Section 11 of Income Tax Act,1961 provides exemptions for Income earned from property held under charitable trusts/societies for the activities carried out on charitable or religious purposes subject to certain terms and conditions.  

Who can claim the exemption? 

• Any trust or institution which is registered under section 12AA of Income Tax Act, 1961 can claim the exemption under this section.

Incomes that can be claimed as exemption: 

• Income received/derived from property held by charitable trust/societies, and if it is utilised for charitable or religious purposes exemption can be claimed under section 11.
• Income received in the form of voluntary contributions with a specific direction that they shall form part of corpus of the trust or institution.

Note:  For the purposes of this section charitable or religious purposes are defined according to section 2(15) of Income Tax Act, 1961.

Read more: Exemption under section 11 of income tax act, 1961

Introduction:

Generally catering Services are taxable at the rate of 18% with ITC benefit as per Notification No 11/2017 dated 28^th June 2017 and supply of food through restaurant, mess, canteen facilities are taxable at rate of 5% without ITC benefit. The following legal issues broke down with respect to the applicable tax rate for the following cases–

• Canteen Facilities at Work Places or Hospitals: Canteen facility will be provided by companies or hospitals to meet the requirements of employees or patients. These canteens are maintained by outsourcing the job of food preparation and supply at the respective canteen facility to a caterer. Whether the caterers who supply the food to companies or hospitals (who in turn supply to employees or patients) would attract GST at 5% without ITC benefit (supply at canteen) or at 18% with ITC benefit (supply as caterer)?
• Food supply in a Hostel maintained by Educational Institutions: Similar to above, Hostel facility maintained by educational institutions, where the food is served to students by self-preparation or outsourcing the same to a caterer. Whether the educational institution is required to charge GST on such food supply or can it claim exemption as the said supply is part of exempt educational services? In case the food preparation is outsourced, whether the caterer is required to charge GST at 5% without ITC benefit or at 18% with ITC benefit?
• Supply of Food by Caterers of IRCTC: Many caterers by virtue of their contract with IRCTC, supply the food to passengers on board, train or on platform. Whether, such caterers are required to charge GST at 5% without ITC benefit or at 18% with ITC benefit?

For example, Company ABC Ltd is engaged in supply of food to its employees through canteen facility by getting the food prepared through outdoor caterer. In this case, the conservative view is that rate of tax applicable for the outdoor catering services obtained by the ABC is 18% and rate of tax applicable for the canteen facility provided by ABC to the employees is at 5%(without ITC) i.e. a total of 23%(18%+5%) tax is being paid by the employees consuming food in such canteen which results in huge tax burden. Upon representation of the issue to the GST council, the council has come up with remedial measures vide their council meeting held on 21^st of June 2018.

Read more: GST Rate for outsourced Canteen Facilities