Advocate Krishnamohan K Menon

Questions Answered by Advocate Krishnamohan K Menon

Q: Legal requirements to start a e commerce website

What are the legal requirements for starting market place e- commerce website? Do the vendors also need their respective GST registration or the site's registration would work?

Advocate Krishnamohan K Menon answered
Requirement and mandates for supplies made through e-commerce operators are prescribed in Section 24(x) & Section 52 to the CGST Act, 2017. Every e-commerce operator is required to take mandatory registration in terms of Section 24(x) to the CGST Act, 2017.Section 52(1) provides that wherever operator provides a platform to other suppliers to make supplies i.e. where transaction takes place on an e-platform and e-commerce operator is only providing such platform for supply of goods or service, the e-commerce operator is required to collect tax@1% on net value of supplies. As per Explanation to Section 52(1), net value means value of supply made through the platform less value of supplies returned to suppliers. As per Section 52(3), the aforesaid tax is to be paid to the Government before 10th of subsequent month. Thereafter, e-commerce operator is required to electronically furnish a statement containing details of outward supplies and returned supplies and amount collected as tax in Form GSTR-8. The tax collected as above shall be available as credit to suppliers based on aforesaid statement.In view of the above as regards e-commerce operations are concerned, w.r.t. supply of goods & services through it, the registration of e-commerce operator is mandatory and the operator has been cast with the responsibility of deducting TCS from the suppliers. However, it is understood that the suppliers displaying products and services on the operators website are separate legal entities with their own independent business. The requirements of registration under Section 22 and payment of tax shall apply to such suppliers independently and liability to pay tax on their supplies whether through e-commerce portal or otherwise shall be always on such suppliers. E-commerce operator is not required to pay tax on the supplies made by other suppliers. Apart from the TCS collected above, taxability of commissions/ flow back of money to e-commerce operator and other transactions between e-commerce operator and suppliers have to be independently assessed.For, Mimansa Law Offices

Q: Paid service tax to builder now Delhi HC ordered return how to get it

How can I apply for service tax refund as per order of Delhi HighCourt. I purchased flat in 2011 and paid service tax to builder. Please give the process note to apply for refund.

Advocate Krishnamohan K Menon answered
After the proposed amendment vide this budget, the judgment of the Hon'ble Delhi High Court has been overcome. It means that the Finance Act 2017 will bring a retrospective (back-dated) amendment to the Service Tax laws whereby the applicability of Service Tax on this transaction will be reinstated. For further clarity, take professional opinion

Q: How to restart the mission banned by govt, please advise

We start a firm with the name of jawahar lal Nehru national solar mission and register with central sales tax depart and having pan card and bank account of same name. We are going to establish a solar panel assembling unit of 10 mega watt we have project report. After that we give a recruitment add on contract basis for Uttar Pradesh. Selection process based on written examination. We charge a nominal fee for exam from 240to 320 Inr. After few days of giving recruitment advertise government ban our website, bank account and payment gateway hold our payment. We want know that how can we solve this issue. Government allow us to run this programme or payment get way release our payment so we can refund to candidate who had been applied .please advise what should be do now Thanks. 

Advocate Krishnamohan K Menon answered
The Jawaharlal Nehru National Solar Mission was launched on the 11th January, 2010 by the Prime Minister and is operating under the Control of Ministry of New and Renewable Energy (MNRE) of the Central Government. This is scheme meant to consolidate the solar power parks across India to avoid fragmentation costs and create a self sufficient and perennial energy source for the country. The Solar Power park is governed by the Government Notification No. No. 30/26/2014-15/NSM dated 12.12.14. Under this scheme the State Governments have to first agree to join hands with the Central Government and allocate lands necessary for such parks. Once such lands are allotted, The Solar Energy Corporation of India (SECI) takes over and appoints Solar Power Park Developers (SPPDs). These developers have the responsibility of developing and running such parks after taking necessary clearances from MNRE and Central Electricity Regulatory Commission (CERC). The Individual Companies who wish to take up a space in the park (called SPDs-Solar Park Developers) have to get the consonance and clearance from the SPDS.Coming to your query, firstly, I believe that Lucknow Solar Power Development Corporation (LSPDCL) is the SPPD for Uttar Pradesh having allotted park areas in Jalaun, Sonbhadra, Allahabad and Mirzapur. I don’t believe that you have taken any clearances and permissions as required from LSPDCL. If so, then you are not operating under a government scheme but you are creating a parallel solar energy park at a private level.Now coming to the question as to whether you can commercially exploit natural resources on a private basis without governmental approval? The answer is no. Solar Energy and Electricity are natural resources governed by the Electricity laws of the country. You need government permissions to access the same at a commercial level. Further, you have also chosen a peculiar name- “Jawaharlal Nehru National Solar Mission’ which is the same as the government project name owned by the Government. The Government is fully correct in restricting your use of the same as the same would not only violate the government’s title over these intellectual properties, but also confuse and mislead the public that it is a government program. Moreover, you seem to want to impart education by operating as a university OR are you only having mere recruitment exams? If it is only the latter then it is okay but if you want to impart education, you need licenses and affiliations under the education laws. As regards the payment gateway, it is not understandable as to what you mean by that. Is it a private or a government payment gateway? Clarity is required.To conclude, it seems that you did not have an ill intent as you have taken Central Sales Tax registration but you seem to be wrongly adviced or ignorant of the basic legal requirements. Legal Consultation is adviced before proceeding any further.