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Supply of manpower to foreign company for working in India to attract GST, says UPAAR

Supply of manpower for work in India to foreign clients having no permanent establishment here will not be treated as export of services and accordingly attract GST, Uttar Pradesh’s Authority for Advance Ruling (UPAAR) has said.

The applicant, Noida-based Pacific Staffing Solutions sought advance ruling on its plans to provide manpower services. It plans to enter into agreements with various customers to provide Human Resource-related services, primarily, Manpower Supply services, to customers located outside India who do not have an establishment or presence in India.

These customers will be availing general staffing services, such as the supply of Contingent labor (Contractual resources) and FTE placements (Permanent resources) at various locations in India in their end- client offices/factories as per the requirement raised by their various Counterparts located in India or outside India.

Under the supply of contingent labor, the applicant will manage their complete payroll life cycle from Joining to Exit and will charge a fixed marked-up fee on the monthly payroll/CTC of contractual resources.

Likewise, a one – time fee will be charged for FTE (Full -time) placements. These services include supply of manpower to Corporate Client, tailor-made professional recruitment services, manpower management services, BPO services, Labor Dispatch Corporate Training and other related services as per the need of the customers.

“The applicant is liable to pay tax as it is not covered under the ambit of export of services,” UPAAR said in a recent ruling after hearing the arguments by CA Siddharth Kejriwal and his colleagues Prakash Joshi and Ashish Mittal on behalf of the applicant

The quasi-judicial body also said that the place of supply of service shall be the location where the services are actually performed.

In the first case where the applicant is providing recruitment services, selected candidates are rendering their services in India.

In second case where applicant is providing Manpower Supply Services, the candidates are rendering services in India. Thus, in both the cases the services are actually being performed in India. This means these services can’t be termed as export of services.

It may be noted that AAR ruling is binding only on the applicant and jurisdictional tax officers. However, it can be relied upon in similar matter. Also, such ruling also become foundation for many policy changes.

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Mangrove project gets GST exemption

In a landmark decision that could boost environmental conservation efforts nationwide, the Gujarat Authority for Advance Ruling (AAR) granted GST exemption to a city-based NGO for its mangrove afforestation project on Gujarat’s coast, recognising it as a “charitable activity.”
“This decision acknowledges that environmental preservation activities, particularly those related to forest and watershed conservation, fall under charitable activities,” said Rajesh Shah, managing trustee of Vikas Centre for Development (VCD).
The AAR’s decision hinged on two findings. First, VCD’s activities don’t qualify as “business” under the GST Act as they are not profit-oriented. Second, there’s no “supply” for consideration, a prerequisite for GST applicability. “Supply” under the GST Act requires a transaction to be in the course or furtherance of “business” and involve consideration.
VCD’s project, which aims to plant 1.25 million mangrove saplings over three years, stands out as a project for “public welfare,” according to Gujarat AAR. The mangrove project is expected to generate 38,500 person-days of employment, benefiting 210 rural families with 200 workdays annually. “Almost, 80% of the project cost is allocated to labour wages, demonstrating its strong social impact,” states a VCD press release.
“We understand industrial and port development are important for growth, but the livelihoods of people whose livelihoods are based on natural resources need to be saved,” says Shah. He adds, “For coastal communities, particularly fishermen and farmers, the project offers sustainable livelihood opportunities through improved fishing grounds and fodder availability for livestock.”
The initiative also promises to reduce soil salinity and improve seawater quality.

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GST panel recommends affordable housing limit increase to ₹56 lakh nationwide: Sources

A government panel on Goods and Services Tax (GST) for real estate is preparing an interim report with recommendations that could impact affordable housing across India, people in the know told CNBC-TV18.

The Group of Ministers (GoM) is looking to raise the affordable housing price limit from the current ₹45 lakh per unit to ₹56 lakh per unit, making more homes eligible for the 1% GST rate that currently applies to affordable housing without Input Tax Credit (ITC), sources said.

The GoM suggests applying this new affordable housing limit across all regions in India, the sources said, adding that they also discussed potentially revising this limit further based on an upcoming formal report by the Reserve Bank of India (RBI).

Another important point raised in the meeting was the GST charged on land cost in housing projects. The GoM is considering whether GST should apply only to the construction cost, with no tax on the land component. sources said.

If implemented, the cost of land in a housing project would be calculated using either the circle rate or two-thirds of the unit’s total cost, whichever is higher. Currently, land cost in these projects is calculated at two-thirds of the overall project cost, while construction makes up the remaining one-third.

The interim recommendations, if accepted, could make housing more affordable for homebuyers across the country.

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GST Revenue: No piecemeal approach

Three groups of ministers (GoMs) under the Goods and Services Tax (GST) Council met recently and reportedly decided to recommend various rate tweaks, exemptions for lower health insurance covers, and a merger of the “compensation cess” with the highest tax slab at a future date. The GoM on rate rationalisation (GoM-RR), which has the crucial mandate for a comprehensive restructuring of the GST slabs with the idea to reduce their number and appropriately revise the tax’s base, seems in no haste to go for an overhaul of the tax structure, even though it has a tight November-end deadline to firm up its views. This is despite the fact that the tax suffers from multiple infirmities and blemishes on its structural integrity. Instead, the GoM-RR in its latest meeting decided to propose changes in the tax rates for over 100 items, with the apparent objective of imposing higher differential taxes on a few high-value items like expensive wristwatches and shoes.

What is required at this juncture is a systematic, objective study of the GST’s revenue performance over the last more than seven years of its existence, devoid of the effect of the external shock (pandemic). GST revenues must be pitted against the mop-up from the comparable pre-GST taxes, and constructive suggestions made on how the tax’s revenue productivity could be improved. According to some estimates, minus the cess proceeds, the collections are still stagnating at around 5.6% of GDP, much lower than in the pre-GST period. However, these estimates need to be borne out. Also, while one of the chief merits of GST is supposedly the stability of the regime, GST rates and base (exemptions) have seen more frequent changes, than even the excise/service tax and state value-added tax regimes that it had replaced.

In the beginning, the GST Council used to work with a much higher degree of common purpose, cohesion, and in deference of economic rationale. However, it now appears to be driven, to an extent, by political considerations, and short-term revenue goals, besides lacking in sufficient technical rigour. There is a talk of the weighted average GST rate having fallen much below the “revenue neutral rate” of 15-15.5%, as computed in the run-up to GST’s launch, and the need to align the rates with the RNR. This could, however, prove to be a fallacious goal, as the RNR was computed with much fewer exemptions than currently available.

The GST Council must live up to its mandate and take further concrete steps towards achieving the economic, productivity, and revenue gains that a comprehensive destination-based indirect tax on consumption was to yield. It must strive for the broadest possible tax base, with exemptions largely being limited to unbranded food and farm products. Exemptions make cross-matching of inputs and outputs non-functional, and besmirch the GST’s basic tenet. Whether the cess needs to continue after the current end date of March 2026 must be decided only after a thorough analysis of the revenue potential of a revamped GST. The number of main GST slabs needs to come down to two from four at present, with a supplementing special rate for a small list of luxury and demerit goods. A proper basing of GST may allow the average rate to be 10% or below, which would mean, say, a merit rate of 8% and a standard one of 12%. That would be much less “taxing” than now.

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Input Service Distributor: Understanding this impending mandatory requirement of GST law

The Input Service Distributor (ISD) is a mechanism that enables the distribution of input tax credits related to common services across various units or factories within an organisation. Initially introduced under the Service Tax regime, the ISD concept transitioned into the GST framework with minimal modifications when GST was implemented in July, 2017.

At the onset of GST, there was some uncertainty as to whether ISD provisions were mandatory or optional, leading some taxpayers to adopt a combination of cross-charging and ISD for expense allocation and credit distribution among their branches.

In the 50th GST Council meeting, held on July 11, 2023, a recommendation was made to clarify through a circular that ISD provisions had been optional up until that point. Additionally, it was proposed to amend the GST law to make ISD provisions mandatory in the future. Following this, Circular No. 199/11/2023-GST, dated July 17, 2023, was issued, formalising the GST Council’s recommendations.

Subsequently, the Interim Union Budget, announced on February 1, 2024, proposed amendments to Sections 2 and 20 of the CGST Act, 2017, making ISD provisions mandatory. Further, on July 10, 2024, Notification No. 12/2024-Central Tax was issued, amending Rule 39 of the CGST Rules, 2017, to prescribe the method for allocating ITC by an ISD.

On August 6, CBIC issued Notification No. 16/2024-Central Tax, which stated that ISD provisions would become mandatory from April 1, 2025.

With the impending mandatory implementation of ISD, taxpayers are advised to review their current practices for allocating expenses and distributing credits. To ensure a smooth transition to the mandatory ISD system, the following actions are recommended:

Assess Common Expenses: Begin by assessing each common expense to determine its eligibility for ISD. Establish clear guidelines for classifying expenses for ISD or cross-charging, ensuring consistency in future evaluations. A detailed review of all expenses is essential.

Develop a Standard Operating Procedure (SOP): After assessing the expenses, create an SOP and a transition plan to minimise disruptions during ISD implementation.

Update Business Systems: Inform the business of the necessary adjustments, including updates to IT systems. This includes incorporating ISD registration details into ERP systems, setting up ISD ledgers, and modifying procurement processes. Additionally, manage the distribution of ineligible credits through ISD and address reversals at the recipient’s GSTIN level, which may require changes to the ERP system.

Vendor Communication: Communicate with vendors to ensure they are aware of the new GST numbers for invoicing purposes. This step is critical to ensure that all expenses are attributed to the correct GSTIN following ISD implementation.

Team Training: Provide training for relevant teams, such as procurement and accounts payable, to ensure they understand the new processes and can perform their roles effectively.

Ensure Compliance: Address all mandatory GST compliance requirements related to ISD, such as obtaining ISD registration, issuing ISD invoices for credit distribution, conducting monthly reconciliations, and filing ISD returns.

The mandatory implementation of ISD also presents an opportunity to reevaluate and potentially optimise credit allocation across an organization’s GST registrations. Although the deadline for ISD implementation is approximately six months away, the extensive preparations required, alongside other obligations like monthly compliance, the newly introduced Invoice Management System, statutory audits, and year-end compliance, suggest that it is advantageous to begin the process early to avoid a last-minute rush.

Considering the above, it would be interesting to witness how taxpayers will adjust to this new requirement and whether the compulsory ISD provisions will enhance transparency or introduce additional complexity into the tax system.

CNBC TV18

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Section 67 CGST Act : Whether Cash Can Be Seized During GST Search ? Supreme Court To Consider

Taking into account conflicting views of the Delhi High Court and the Madhya Pradesh High Court, the Supreme Court is set to consider the issue as to whether authorities can seize “cash” under Section 67 of the Central Goods and Services Tax Act, 2017.

The development comes as a bench of Justices PS Narasimha and Sandeep Mehta recently issued notice on a petition filed by tax authorities assailing Delhi High Court’s direction for refund of seized cash to the respondents.

To briefly state facts of the case, the petitioner-authorities conducted a search at the residential premises of the respondents under Section 67 of the CGST Act. In course of the same, they found cash amounting to Rs.1,15,00,000/- which could not be satisfactorily explained by the respondents, and seized it. The respondents requested that the same be released to them, but to no avail.

Ultimately, the respondents approached the High Court, contending that the petitioner-authorities had no power to seize cash under Section 67 of the CGST Act on the ground that the same was not satisfactorily explained.

In response, it was conceded that the issue stood covered by earlier decisions of the Court in Deepak Khandelwal Proprietor M/s Shri Shyam Metal v. Commissioner of CGST, Delhi West & Anr. and Rajeev Chhatwal v. Commissioner of Goods and Services Tax (East). Accordingly, the petition was allowed and the petitioner-authorities directed to remit back the seized amount.

Assailing the decision of the High Court, the petitioner-authorities approached the Supreme Court. It is their claim that divergent views exist on the issue of seizure of cash under Section 67 of the CGST Act. While the Delhi High Court has held that authorities don’t have the power to seize cash, the Madhya Pradesh High Court has opined that cash can be seized.

Considering the above, the top Court issued notice in the present case.

For context, Section 67 of the CGST Act reads thus:

“(2) Where the proper officer, not below the rank of Joint Commissioner, either pursuant to an inspection carried out under sub-section (1) or otherwise, has reasons to believe that any goods liable to confiscation or any documents or books or things, which in his opinion shall be useful for or relevant to any proceedings under this Act, are secreted in any place, he may authorise in writing any other officer of central tax to search and seize or may himself search and seize such goods, documents or books or things:

Provided that where it is not practicable to seize any such goods, the proper officer, or any officer authorised by him, may serve on the owner or the custodian of the goods an order that he shall not remove, part with, or otherwise deal with the goods except with the previous permission of such officer:

Provided further that the documents or books or things so seized shall be retained by such officer only for so long as may be necessary for their examination and for any inquiry or proceedings under this Act.”

Live Law

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Perils to cess merger with GST rates

As the extended deadline of March 31, 2026 for the expiry of GST compensation approaches, reports indicate that the Group of Ministers (GoM) is considering the possibility of merging the cess with standard GST rates on certain luxury and demerit goods such as automobiles, soft drinks, tobacco and coal.

While the move attempts to retain annual revenue collections from GST cess – ₹1.44 lakh crore in FY 2024 – this proposal raises serious legal, economic and governance concerns.

Constitutional issue

Cess and tax serve distinct purposes under Indian Constitution. A tax is levied to fund general government activities, while a cess is purpose-specific and temporary.
Under Article 271, a cess must be discontinued once its objective is achieved.

The compensation cess was introduced to help states overcome revenue losses during GST transition, with an explicit promise that it would end by the extended time on March 31, 2026.

Extending or embedding it into GST rates would violate this principle, inviting legal challenges and undermining public trust.

Disruption of plans

Industries affected by the cess — including automobiles, tobacco, and beverages —structured their business and expansion strategies assuming the cess would expire.

Continuing it, disguised as a higher GST rate, could hurt business operations and financial planning. For example, the auto industry expected reduced taxes from FY2026-27 to stimulate demand.

Sudden changes in tax burdens may also affect exports by increasing production costs, weakening India’s global competitiveness.

Higher GST rates would distort the principle of tax neutrality by unevenly burdening certain sectors, resulting in price inflation. This would discourage consumer spending, especially in lifestyle segments such as personal vehicles and soft drinks, reducing demand and hampering economic recovery.

Federalism hit

The GST compensation mechanism was designed to support states temporarily while they adjusted to the new tax regime, with states expected to develop independent revenue sources. If the cess is merged with the GST, states could lose incentives to pursue economic reforms and remain dependent on central revenues.

Moreover, tax transparency and accountability would be compromised, as it would be difficult to track the revenue originally intended for compensation purposes.

This creates the risk of permanently higher tax rates without clarity on how these funds will be utilised.

Sin goods review

The classification of goods subject to cess should be revisited to reflect changing realities. For instance, electric vehicles, once considered luxury goods, are now crucial to green initiatives. Penalising such products through higher GST rates would discourage sustainability efforts.

The proposed merger of GST cess with base GST rates is neither legal nor logical.

It violates constitutional principles, disrupts business planning, distorts economic neutrality and discourages reforms at the state level.

Instead of altering the tax structure, the GoM should focus on sustainable state-
level fiscal solutions and maintain transparency and predictability in tax policy to foster long-term growth and trust.

Telegraph India

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GoM may propose GST rejig on several items; likely to generate ₹22,000 crore surplus

The GST Council nominated Group of Ministers (GoM) on rate rationalisation is likely to propose rate rejig on several items, including packaged drinking water of more than 20 litres, exercise books, expensive shoes and watches etc which could generate additional revenue surplus of ₹22,000 crore, sources privy to the developments told CNBC-TV18.

In its meeting on Saturday (October 19) in New Delhi, “GoM rate Rationalisation discussed several proposals and is considering rework rates by reducing rates on common use items, hiking rates on items which are used less or should be termed as luxury and sin goods,” sources told CNBC-TV18.

According to sources, “The GoM on GST rate rationalisation on Saturday decided to lower tax rates on 20 litres and above packaged drinking water bottles from current 18% to 5%, bicycles of less than ₹10,000 to 5% and exercise notebook to 5%.”

“GoM is likely to hike rates on items such as high-end wristwatches (₹25,000 and above) and shoes (₹15,000 and above) from 18% to 28%,” sources said.

It is understood that the rate adjustments are likely to yield a revenue surplus of ₹22,000 crore, which will help in improving GST collections and recover from losses which are likely to be incurred from proposed relaxations for the life and health insurance sectors, sources said.

The proposed rejig includes both rate reductions and hikes on a variety of items, according to multiple people familiar with the development.

In its previous meeting, the GoM on Rate rationalisation discussed tax rate tweaks on over 100 items, including lowering taxes on certain goods from 12 to 5% to give relief to the common man.

There were some items in the 18% slab like hair dryers, hair curlers, and beauty or make-up preparations which the GoM had discussed could be shifted back to the 28% slab.

GoM on rate Rationalisation is a 6-member panel under the chairmanship of Samrat Chaudhary, Deputy CM of Bihar. It includes other states — Uttar Pradesh Finance Minister Suresh Kumar Khanna, Rajasthan Health Services Minister Gajendra Singh, Karnataka Revenue Minister Krishna Byre Gowda and Kerala Finance Minister K N Balagopal.

Currently, Goods and Services Tax (GST) is a four-tier tax structure with slabs at 5, 12, 18 and 28%. Under GST essential items are either exempted or taxed at the lowest slab, while luxury and demerit items attract the highest slab. Luxury and sin goods attract cess on top of the highest 28% slab.

The average GST rate has fallen below the revenue-neutral rate of 15.3% because of this the council asked GoM to consider rate rationalisation exercises to ensure healthy GST collections and reduce the tax incidence on common people.

CNBC TV 18

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GST amendments: Place of supply clarification – Clarificatory or Misleading?

The GST laws have seen plethora of changes during the recent times. Recent Council meetings and budget sessions have introduced various complexities for businesses. GST being a destination-based consumption tax is levied at every stage of the supply chain. The challenge arises when invoicing location is different from that of the location where consumption takes place, particularly in a ‘bill to ship to’ transaction.

Recently, a circular dated 26.06.2024 (Ref: Circular No. 209/3/2024 – GST) was issued to clarify the place of supply for supplies made to unregistered persons (Circular). This Circular is in furtherance to a notification dated 29.09.2023 (Ref: Notification 02/2023 – Integrated Tax) which amended certain provisions of the Integrated Goods and Services Tax Act, 2017 (IGST Act). The said amendment introduced clause (ca) to Section 10(1) of the IGST Act, to inter alia prescribe that the place of supply for supplies made to an unregistered person would be the location as per the address of the relevant person as recorded in the invoice.

It is pertinent to note that as per the amended clause read with the Circular, where billing address is different from the address of delivery, the place of supply of goods, particularly being supplied through e-commerce platform to unregistered persons, shall be the address of delivery of goods recorded on the invoice and not the billing address. The clarification is in line with the intention of insertion of Section 10(1)(ca) of the IGST Act i.e., the revenue should flow to the State where the goods are being consumed.

However, this clarification is quite contrary to the already existing provisions for ‘bill to ship to’ transaction in case of supplies made to a registered person. In other words, as per Section 16(2)(b)(i) of the Central Goods and Services Tax Act, 2017 (CGST Act) read with Section 10(1)(b) of the IGST Act, in a ‘bill to ship to’ transactions where the bill to and ship to parties are located in different States, the place of supply is the location of the ‘bill to’ party and tax is accordingly discharged. Accordingly, the taxpayers have been paying CGST and SGST where the goods are delivered to an unregistered person located in another State.

 

It will now be interesting to see the practice adopted by the departmental authorities for recovering taxes where the taxpayers have discharged CGST and SGST instead of IGST or vice versa, since Section 10(1)(ca) of the IGST Act has been inserted with effect from 01.10.2023 and the Circular has been issued on 26.06.2024. Thus, the taxpayers are left to guess the correct legal position for the transactions that took place between the two abovementioned dates. Will they face tax demands for the past period, or would the issue be regularized on as is basis in terms of the proposed Section 11A of the CGST Act?

Since this new Section 10(1)(ca) supersedes Section 10(1)(a) of the IGST Act, the place of supply would now be the location where the movement ends for delivery. The subject of what constitutes ‘supply involving movement’ is very debatable because goods are considered to entail movement only when they involve movement, either before or after supply and final delivery. This Circular also attempts to lay down the same position that is prescribed under Section 10(1)(a) of the IGST Act, so what is the difference?

 

The Circular states that the clarification would apply to e-commerce transactions where the individual placing the order wishes to transfer the products to a third party in another State. However, the place of supply controversy for over-the-counter sales remains unresolved. Would this clarification solely apply to transactions made online?

Another issue that remains open is that if the clarification provided in the Circular is considered to be retrospective, whether the taxpayers can claim refund of the taxes paid under the heads of CGST and SGST and pay tax under the head of IGST for the past period by taking shelter under Section 77 of the CGST Act and seek waiver from payment of interest? Or can the taxpayers contest the same considering the already existing provisions and the practice adopted by them for making payment of tax?

It appears that the Circular supersedes the provisions of the IGST Act and is issued to solve a problem that never existed in the first place. This causes further confusion in the industry regarding how to actually put these clarifications into practice, as they do not attempt to address many significant issues presently faced by the industry, instead addressing a non-existent problem which only results in increased complications and confusion.

Economic Times

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GoM decides to cut GST on 20-litre water bottles, bicycles to 5 pc; raise rate on shoes, watches

“On Saturday (October 19, 2024), the Group of Ministers (GoM) on GST rate rationalisation decided to lower tax rates on 20-litre packaged drinking water bottles, bicycles and exercise notebooks to 5%, but suggested raising taxes on high-end wrist watches and shoes,” an official said.

The rate rejig decision taken by the GoM on GST rate rationalisation under Bihar Deputy Chief Minister Samrat Chaudhary would lead to a revenue gain of ₹22,000 crore, the officials added.

The GoM proposed reducing GST on packaged drinking water of 20 litres and above to 5% from 18%. If the GoM’s recommendation is accepted by the GST Council, the GST on bicycles costing less than ₹10,000 will be reduced to 5% from 12%.

Also, GST on exercise notebooks will be reduced to 5% from 12%, the GoM proposed.

The GoM also suggested hiking GST on shoes above ₹15,000 a pair and on wrist watches above ₹25,000 from 18% to 28%.

The GoM on rate rationalisation in its previous meeting on Saturday (October 19, 2024) had discussed tax rate tweaks on over 100 items, including lowering taxes on certain goods from 12- to 5%, to give relief to the common man.

Some items in the 18% slab like hair dryers, hair curlers, and beauty or make-up preparations that the GoM took up could be back in the 28% bracket.

The six-member GoM also includes Uttar Pradesh Finance Minister Suresh Kumar Khanna, Rajasthan Health Services Minister Gajendra Singh, Karnataka Revenue Minister Krishna Byre Gowda, and Kerala Finance Minister K.N. Balagopal.

Currently, GST is a four-tier tax structure with slabs at 5-, 12-, 18-, and 28%.

Under GST, essential items are either exempted or taxed at the lowest slab, while luxury and demerit items attract the highest slab. Luxury and sin goods attract cess on top of the highest 28% slab.

The average GST rate has fallen below the revenue-neutral rate of 15.3%, prompting the need to start discussions on GST rate rationalisation.

Term life insurance premium, senior citizen’s health coverage may be exempt

The GoM to decide on the GST rate on life and health insurance met on Saturday (October 19, 2024) and decided to exempt GST on premiums paid for health insurance with coverage of ₹5 lakh for individuals other than senior citizens.

The final decision in this regard will be taken by the GST Council. Official premiums paid for health insurance coverage of above ₹5 lakh will continue to attract 18% GST.

Currently, 18% GST is levied on life insurance premiums paid for term policies and family floater policies.

“GoM members are broadly on board for cutting my rates on insurance premiums. A final decision will be taken by the GST Council,” an official said.

Bihar Deputy Chief Minister Samrat Chaudhary said, “Every GoM member wants to give relief to people. Special focus be on senior citizens. We will submit a report to the council. A final decision will be taken by the council”.

However, there might be no GST on insurance premiums paid for senior citizens, irrespective of the coverage amount.

The GST Council in its meeting last month had decided to set up a 13-member GoM to decide on tax on health and life insurance premiums.

Mr. Choudhary is the convenor of the GoM. The panel includes ministers from Uttar Pradesh, Rajasthan, West Bengal, Karnataka, Kerala, Andhra Pradesh, Goa, Gujarat, Meghalaya, Punjab, Tamil Nadu, and Telangana.

The GoM has been mandated to submit its report to the Council by October-end.

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