Advocates Still Face Constant Harassment Though They Are Exempted From Paying GST

KEY TAKEAWAYS

  • The reference case is Devi Prasad Tripathy v. The Principal Commissioner CGST and Central Excise, Bhubaneswar & Others. [W.P(C) No. 27727 of 2020]
  • A 2 judge bench of Orrisa High Court consisting of Chief judge of Orrisa High Court Justice B.P Routray and Justice Dr S. Muralidhar were hearing a plea on an issue faced by a lawyer for paying GST or service tax for which he wasn’t liable.
  • It is to be noted that practising lawyers are exempted from paying service tax or GST.

BACKGROUND DETAILS

  • A case came up before the Orrisa High Court recently where a petition was filed by a practising advocate complaining about harassment by the department of goods and service tax.
  • Devi Prasad Tripathy, the petitioner complained that a notice was issued to him for payment of service tax which he was not liable to pay as practising lawyers are exempted from paying service tax or GST.
  • Further he contended that the department officers harassed him by contending that he needs to prove that he is a practising lawyer by way of showing documentary evidence to avoid paying service tax.
  • He also stated that a similar notice was served to him in 2017 for payment of service tax.

FURTHER DETAILS

  • Assistant solicitor general of India P.K Parhi said that no notice should have been served on him since he is a practising lawyer.
  • The principal commissioner of GST and Central Excise, Bhubaneswar said that since they were informed that Devi Prasad is a practising lawyer, all the proceedings have been dropped against him.
  • The advocates present during the hearing in the court also admitted that they have been receiving similar notices for payment of service tax. To which the court remarked that despite being fully aware of the fact that practising advocates are exempted from paying GST or service tax still the authorities issue notice.
  • Therefore, the court asked the assistant solicitor general (ASG) whether clear instructions to abstain from issuing notices for payment of service taxes has been issued to the officers, to that the ASG said that he needs time to get instructions.

COURT OBSERVATIONS & VERDICT

  • The court observed that the 2012 notification provided that the service tax liability is null for lawyers providing legal services but still, the department issues notice to lawyers demanding payment of service tax.
  • The court also showed its concerns that the practising lawyers should not face such harassment on account of payment of GST or service tax levied upon them which they are exempted to pay and on top of that in this process, they are also forced to prove that they are practising lawyers.
  • The court directed the GST commissioner to issue clear instructions to all the concerned officers of the department in the state of Orrisa with regards to the GST regime that no notice of payment of service taxes or GST should be served on the lawyers rendering legal services.
  • Also for the court's satisfaction, the bench demanded that on the next date of hearing all the copies of the instructions should be placed before the court.
  • Before the adjournment, the court said that the lawyers should no more face any harassment and the matter is posted for the next hearing on 22nd April.

WHETHER GST APPLIES FOR LAWYERS?

  • It is said that GST applies to those lawyers or law firms who provide their legal services to a business entity whose previous financial year's turnover is at least ₹20 lakhs or above.
  • GST also becomes applicable to those who hire senior advocates who provide their legal services or expertise to other lawyers or other law firms. As legal services provided by a senior lawyer to a business entity is charged under reverse charge mechanism therefore the business entity shall be liable to pay GST.
  • Bur there are certain immunities from the payment of GST, there is GST on lawyers fees i.e. advocates fees and law firm fees but they don’t have to pay GST. The GST on legal fees in India is applicable based on the reverse charge mechanism.
  • Even a partnership firm providing legal services get exempted from paying GST in India.
  • Also in the case of senior advocates who provide their legal services to that business entity whose turnover is up to ₹10 lakhs or only up to ₹ 20 lakhs is exempted from the liability of paying GST. However, this kind of exemption depends upon the States falling under general or special category states.
  • Hence, in short lawyers or law firms providing legal services to advocates, other law firms, small business entity or non-business entities are exempted from the liability of paying GST.
  • If a person is not a practising lawyer and is just enrolled as an advocate, then such a person needs to pay GST.

CONCLUSION

The GST is also known as goods and service tax and sometimes simply called service tax was introduced to bring in a unified tax system which was earlier based on indirect taxes. In this case, the Orrisa High Court noted that the practising lawyer was exempted from paying GST yet time and again he was issued notice to pay GST not only him but other lawyers also shed light on the same issue faced by them.

Though there can be still confusion regarding the concept of GST amongst people, the department of GST itself doing such things is not acceptable. Even the court pointed out that even when the concerned officers of the department know this still issues such notices which looks like either they are deliberately harassing lawyers or are unaware of the laws.

Have you ever witnessed such harassment by GST authorities being a practising lawyer?

 

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JINALI SHAH Online
on 10 April 2021
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