Vide Notification No. 17/2021-Central Tax (Rate) dated 18.11.2021, as recommended by the GST Council in its 45th Council Meeting, stated that tax on supplies of restaurant services supplied through e-commerce operators shall be paid by the e-commerce operator under Section 9(5) of the CGST Act’2017.

Certain clarification with respect to supply of restaurant services through e-commerce operators have been provided through Circular No. 167/23/2021-GST dated 17.12.21, as produced below:

Sr. No. Clarification:
1. Issue: Would ECOs have to still collect TCS in compliance with section 52 of the CGST Act, 2017?
The ECOs will no longer be required to collect TCS and file GSTR 8 in respect of restaurant services on which it pays tax in terms of section 9(5). However, on other goods or services supplied through ECO, which are not notified u/s 9(5), ECOs will continue to pay TCS in terms of section 52 of CGST Act, 2017 in the same manner at present.
2. Would ECOs have to mandatorily take a separate registration w.r.t supply of restaurant service [notified under 9(5)] through them even though they are registered to pay GST on services on their own account?
As ECOs are already registered, there would be no mandatory requirement of taking separate registration by ECOs for payment of tax on restaurant service under section 9(5) of the CGST Act, 2017.
3. Would the ECOs be liable to pay tax on supply of restaurant service made by unregistered business entities?
Yes. ECOs will be liable to pay GST on any restaurant service supplied through them including by an unregistered person.
4. What would be the aggregate turnover of person supplying ‘restaurant service’ through ECOs?
Aggregate turnover of person supplying restaurant service through ECOs shall be computed as defined in section 2(6) of the CGST Act, 2017 and shall include the aggregate value of supplies made by the restaurant through ECOs.
5. Can the supplies of restaurant service made through ECOs be recorded as inward supply of ECOs (liable to reverse charge) in GSTR 3B?
No. ECOs are not the recipient of restaurant service supplied through them. Therefore, this shall not to be reported as inward supply.
6. Would ECOs be liable to reverse proportional input tax credit on his input goods and services for the reason that input tax credit is not admissible on ‘restaurant service’?
It is clarified that ECO shall not be required to reverse ITC on account of restaurant services on which it pays GST in terms of section 9(5) of the Act, as ECOs provide their own services as an electronic platform and an intermediary and thus can avail ITC on the same.
7. Can ECO utilize its Input Tax Credit to pay tax w.r.t ‘restaurant service’ supplied through the ECO?
No. The liability of payment of tax by ECO as per section 9(5) shall be discharged in cash.
8. Would supply of goods or services other than ‘restaurant service’ through ECOs be taxed at 5% without ITC?
ECO is required to pay GST on services notified under section 9(5), besides the services/other supplies made on his own account. On any supply that is not notified under section 9(5), that is supplied by a person through ECO, the liability to pay GST continues on such supplier and ECO shall continue to pay TCS on such supplies.
9. Would ‘restaurant service’ and goods or services other than restaurant service sold by a restaurant to a customer under the same order be billed differently? Who shall be liable for raising invoices in such cases?
It is advisable that ECO raises separate bill on restaurant service in cases where ECO provides other supplies to a customer under the same order.
10. Who will issue invoice in respect of restaurant service supplied through ECO – whether by the restaurant or by the ECO?
The invoice in respect of restaurant service supplied through ECO under section 9(5) will be issued by ECO.
11. Clarification may be issued as regard reporting of restaurant services, value and tax liability etc in the GST return.
The ECO may pay GST by furnishing the details in GSTR 3B, reporting them as outward taxable supplies and in in Table 7A (1) or Table 4A of GSTR-1.   Further, Registered persons supplying restaurant services through ECOs under section 9(5) will report such supplies of restaurant services made through ECOs in Table 8 of GSTR-1 and Table 3.1 (c) of GSTR-3B.

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