Circular, 2024

Text

Reproduced from the document India Code holds for this instrument. The Gazette prints Hindi and English side by side and this is the English; the Department's own PDF remains the authority.

Grudon No - 908023 397 :- Clarification in respect of advertising services provided to foreign clients

SIS GO 1

AR (SUREISEEEE)) I VR | Circular No. 230/24/2024-GST Government of India Ministry of Finance Department of Revenue Central Board of Indirect Taxes and Customs *okk New Delhi, dated the 1 " September, 2024 To.

The Principal Chief Commissioners/ Chief Commissioners/ Principal Commissioners/ Commissioners of Central Tax (All), The Principal Directors General/ Directors General (All).

Subject: Clarification in respect of advertising services provided to foreign clients-reg, References have been received from the trade and industry requesting for clarification regarding advertising services being provided by Indian advertising companies/agencies to foreign entities, as some of the field formations are considering the place of supply of the said services as within India, thereby denying the export benefits to such advertising companies.

12 In view of the difficulties being faced by the trade and industry and to ensure uniformity in the implementation of the provisions of the law across field formations, the Board, in exercise of its powers conferred by section 168 (1) of the Central Goods and Services Tax Act, 2017 (hereinafter referred to as “CGST Act”), hereby clarifies the issues in s.cceeding paragraphs.

2. Issue in Brief 2.1 A foreign company or firm hires an advertising company/agency in India for advertisement of its goods or services and may enter into a comprehensive agreement with the advertising company/agency encompassing all the issues related to advertising services ranging from media planning, investment planning for the same, creating and designing content, strategizing for maximum customer reach, the identification of media owners, dealing with media owners, procuring media space, etc. for displaying/broadcasting/printing of advertisement including monitoring of the progress of the same. In such a case, the adv_rtising agency provides a one stop solution to the client who outsources the entire activity to the agency.

Page 1 of 5 22 In this scenario, media owners raise invoice 1o the advertising agency for inventory which are then paid by the advertising agency Subsequently, the advertising agency raises invoice to the foreign client for the rendered advertising, services and receives the €O! payments in forcign exchange from the forcign client. In this repard, clarification has been sought as to:

o Whether the advertising company can be considered as an “intermediary” between the foreign client and the media owners in terms of section 2(13) of ted Goods and Services Tax Act, 2017 (herein after referred to as the iST Act”), thereby resulting in determination of place of supply under section 13(8)(b) of the IGST Act? b, Whether the representative of forcign client in India or the target audicnce of the advertisement in India can be considered as the recipient of the services being supplicd by the advertising company under scetion 2(93) of CGST Act? ¢. Whether the advertising services provided by the advertising companics 10 forcign clients can be considered as pcrfi)rmzmcu-huscd services as per section 13(3)of the IGST Act?

3. CLARIFICATION:

3.1 Issuc 1 -Whether the advertising company can be considered as an “intermediary” Dbetween the foreign client and the media owners as per seetion 2(13) of IGST Act? 3.1.1 As per section 2(13) of 1GST Act, rcad with Circular no. 159/15/2021-GST dated 20.09.2021, a broker, agent or any other person who arranges or facilitatcs the main supply s and has not involved himself in the main supply on of goods or scrvices or both or sccuritic his own account is considered as intermediary.

3.1.2 In the instant scenario, it is observed that the foreign clients cnter into a comprehensive agreement with advertising companics/agencics in India and outsource the entire activity of advertising services to the advertising companics/agencies. Further, these advertising companies/agencics enter into an agreement with the media owners in India for implementing the said media plan and procurement of media space for airing or releasing or printing advertisement.

3.1.3 The advertising agency, in this case, enters into two agreements: i, With the client located outside India for providing a onc stop solution starting from designing the advertisement t0 its display in the media as agreed to with the client. The advertising company raises invoice to its foreign client for the above advertising services and the payments of the same is received from the foreign client in foreign exchange.

ii. With the media company to procurc media space for display of the advertisement and to monitor campaign progress based on data shared by the Page 2 of § media company. The media company bills the advertising agency and the payment for same is made by the advertising agency to the media company. 3.1.4 Thus, the agreement, in the instant case, is in the nature of two distinct principal-to- principal supplies and no agreement of supply of services exists between the Media company and the foreign client. The advertising company is not acting as an agent but has been contracted by the client to procure and provide certain services. The advertising agency is providing the services to the client on its own account.

3.1.5 In view of above, it is clarified that in the present scenario, the advertising company is involved in the main supply of advertising services, including resale of media space, to the forcign client on principal-to-principal basis as detailed above and does not fulfil the criteria of “intermediary” under section 2(13) of the IGST Act. Thus, the same cannot be considered as “intermediary” in such a scenario and accordingly, the place of supply in the instant matter cannot be linked with the location of supplier of services in terms of section 13(8)(b) of the IGST Act.

3.2 Issue-2 Whether the representative of foreign client in India or the target audience of the advertisement in India can be considered as the “recipient” of the services being supplied by the advertising company under section 2(93) of CGST Act? 3.2.1 As per Section 2(93)(a) of the CGST Act, the “recipient” of the services means the person who is liable to pay consideration where a consideration is payable for the supply of goods or services or both.

322 In the instant scenario, the foreign client is liable to pay the consideration to advertising company for the supply of advertising and not the consumers or the target audience that watches the advertisement in India. Further, in this case, even if a representative of the said foreign client based in India, including a subsidiary or related person of the said foreign client, is interacting with the advertising company on behalf of the said foreign client, the said representative based in India cannot be considered as a recipient of the service, if the agreement is between the foreign client and the advertising company, the invoice is being issued for the said service by the advertising company to the foreign client and the payment for the said service is received by the advertising company directly from the said foreign client. Further, the target audience of the advertisements may be based in India but such target audience cannot be considered as recipient of the said advertising services being supplied by the advertising company as per the definition of the recipient under section 2(93) of CGST Act.

3.2.3 Therefore, in view of above, it is clarified that the recipient of the advertising services provided by the advertising company in such cases is the foreign client and not the Indian representative of the foreign client based in India or the target audience of the advertisements, as per section 2(93) of the CGST Act, 2017.

Page 3 of 5 3.3 Issue-3Whether the advertising services provided by the advertising companies to foreign clients can be considered as performance-based services as per scction 13(3)of the IGST Act? 3.3.1 The place of supply of performance based services is provided in sub-section (3) of section 13 of IGST Act. The provisions of clause (a) of the said sub-section pertain to the services supplied in respect of goods which are required to be made physically available by the recipient of services to the supplier of services. However, in the instant matter, there does not appear to be any such involvement of goods which are required to be physically available with supplier of advertising services. Therefore, the said provisions of clause (a).of the said sub-section cannot be made applicable for determination of place of supply of advertising services.

332 Further, clause of (b) of sub-section (3) of section 13(3)(b) of IGST Act provides that the place of supply shall be the location where the services are actually performed in case, where, a. services are supplied to an individual, b. represented either as the recipient of services or a person acting on behalf of the recipient, and c. which requires the physical presence of the recipient or the person acting on his behalf, with the supplier for the supply of services 323 In the present scenario, the supply of advertising services does not require physical presence of the recipient (foreign client or representative or a person acting on his behalf) with the advertising company for availing the said advertising services. Thus, the said supply of advertising services cannot be considered as being covered under section 13(3)(b) of the IGST Act for being considered as the services actually performed in India in terms of the said section.

333 Accordingly, it is clarified that the place of supply of advertising services in such cases can neither be determined as per the provision of section 13(3)(a) nor as per the provisions of section 13(3)(b) of IGST Act.

4. Further, it is observed that in the present scenario, the place of supply of the above- mentioned advertising services does not appear to be covered under any other provisions of sub--ections (3) to (13) of Section 13 of the IGST Act. Therefore, in view of foregoing discussion, it appears that the place of supply of the said advertising service being supplied by the advertising company to the foreign clients can only be determined as per the default provision, i.e. sub-section (2) of section 13 of IGST Act, i.e. the place of location of the recipient of the services. Since the recipient of the advertising services in such scenario is the foreign client, who is located outside India, the place of supply of the said services appears to be the location of the said foreign client i.e. outside India as per Section 13(2) of IGST Act, s Page 4 of 5 and the said service ca i . d l‘h.x. said sur'vm can be considered to be export of services, subject to the fulfilment of conditions mentioned in section 2(6) of IGST Act.

S. However, there may be cases where the advertising company located in India merely acts as an agent of the foreign client in engaging with the media owner for providing media space to the foreign client. In such cases, the agreement/ contract for providing the media space and broadcast of the advertisement is directly between media owner and the foreign client. The media owner directly invoices the foreign client for providing the media space and broadcast of the advertisement and the foreign client remits the payment for the said services dircctly to the media owner. In such instances, the services of providing media space and broadcasting the advertisement are directly provided by the media owner to the foreign client. In such cases, the advertising company is merely facilitating the provision of the said services of providing media space and broadcasting the advertisement between the foreign client and the media owner and does not provide the said services on its own account. The advertising company invoices the foreign client for the facilitation services provided by it. §:l Consequently, in such cases, the advertising company is an "intermediary" in accordance with Scction 2(13) of the CGST Act, 2017, as elucidated in Circular No. 159/15/2021-GST dated 20.09.2021, in respect of the said services of facilitating the foreign client and accordingly, the place of supply in respect of the said services provided by the advertising company to the foreign client is determinable as per section 13(8)(b)of IGST Act, i.c. the location of the supplier, i.e. the location of the advertising company.

6. It is requested that suitable trade notices may be issued to publicize the contents of this Circular.

7. Difficulty, if any, in the implementation of this Circular may be brought to the notice of the Board. Hindi version will follow.

(Sanjay Mangal) Page 5of 5

Provisions this circular answers to

Read out of the instrument itself: an enabling provision is one it says it was made under, which is the power it rests on. The rest it names without resting on.

Other instruments under the same Act

All of the The Uttar Pradesh Goods and Services Tax Act, 2017