Is ever E-Commerce Operator required to be file GSTR–9B?

Whether or not to File GSTR-8 and GSTR-9B depends on the very fact that whether the e-commerce operator is required to collect tax under section 52 (1) of the CGST Act.

Certain operators who own, operate and manage e-commerce platforms are liable to collect TCS. TCS applies only if the operators collect the consideration from the customers on behalf of vendors or suppliers. In other words, when the e-commerce operators pay the consideration collected to the vendors they have to deduct an amount as TCS and pay the net amount. There are exceptions to the TCS provision and it is not necessary that all operators are liable to collect tax under section 52. For say, if the company is only in the business of providing online information services to its users via an application or website i.e. via a digital platform the company will fall under the definition of e-commerce operator by virtue of section 9 (44) and 9 (45), however, in view of the above the main premise for applicability of the section 52 of the CGST Act is that the consideration for service is routed through the e-commerce operator, which evidently is not the business needs of an operator which is only providing online data access. Therefore, in all practical aspects the e-commerce operator is not required to furnish FORM GSTR-8 prescribed in section 52 (4) read with rule 67 and is not required to file Form GSTR – 9B 8 prescribed in section 52 (5) read with rule 80, as provision under section 52 (1) is not attracted and sections 52 (4) and (5) are only applicable to operators who fall within the ambit of section 52 (1). In such case, where the e-commerce operator is not liable to collect tax, will be required to file its annual return in Form GSTR – 9 and gets its accounts audited in case the turnover exceeds Rs. 2 Crores and file its audited annual accounts and a reconciliation statement in Form GSTR – 9C as per section 44(1) and section 35 (5) of the CGST Act read with relevant CGST Rules.

Relevant Extracts from the Act

Section 9 (44):

“electronic commerce” means the supply of goods or services or both, including digital products over digital or electronic network.

Section 9 (45):

“electronic commerce operator” means any person who owns, operates or manages digital or electronic facility or platform for electronic commerce.

Section 35 (5):

Every registered person whose turnover during a financial year exceeds the prescribed limit shall get his accounts audited by a chartered accountant or a cost accountant and shall submit a copy of the audited annual accounts, the reconciliation statement under sub-section (2) of section 44 and such other documents in such form and manner as may be prescribed.

Section 44 (1):

Every registered person, other than an Input Service Distributor, a person paying tax under section 51 or section 52, a casual taxable person and a non-resident taxable person, shall furnish an annual return for every financial year electronically in such form and manner as may be prescribed on or before the thirty-first day of December following the end of such financial year.

(2) Every registered person who is required to get his accounts audited in accordance with the provisions of sub-section (5) of section 35 shall furnish, electronically, the annual return under sub-section (1) along with a copy of the audited annual accounts and a reconciliation statement, reconciling the value of supplies declared in the return furnished for the financial year with the audited annual financial statement, and such other particulars as may be prescribed.

Section 52 (1):

Notwithstanding anything to the contrary contained in this Act, every electronic commerce operator (hereafter in this section referred to as the “operator”), not being an agent, shall collect an amount calculated at such rate not exceeding one per cent., as may be notified by the Government on the recommendations of the Council, of the net value of taxable supplies made through it by other suppliers where the consideration with respect to such supplies is to be collected by the operator.

(3) The amount collected under sub-section (1) shall be paid to the Government by the operator within ten days after the end of the month in which such collection is made, in such manner as may be prescribed.

(4) Every operator who collects the amount specified in sub-section (1) shall furnish a statement, electronically, containing the details of outward supplies of goods or services or both effected through it, including the supplies of goods or services or both returned through it, and the amount collected under sub-section (1) during a month, in such form and manner as may be prescribed, within ten days after the end of such month.

(5) Every operator who collects the amount specified in sub-section (1) shall furnish an annual statement, electronically, containing the details of outward supplies of goods or services or both effected through it, including the supplies of goods or services or both returned through it, and the amount collected under the said sub-section during the financial year, in such form and manner as may be prescribed, before the thirty first day of December following the end of such financial year.

Rule 67:

Form and manner of submission of statement of supplies through an ecommerce operator.-(1) Every electronic commerce operator required to collect tax at source under section 52 shall furnish a statement in FORM GSTR-8 electronically on the common portal, either directly or from a Facilitation Centre notified by the Commissioner, containing details of supplies effected through such operator and the amount of tax collected as required under sub-section (1) of section 52.

Rule 80: Annual Return (1):

Every registered person [other than those referred to in the proviso to sub-section (5) of section 35] 94, other than an Input Service Distributor, a person paying tax under section 51 or section 52, a casual taxable person and a non-resident taxable person, shall furnish an annual return as specified under sub-section (1) of section 44 electronically in FORM GSTR-9 through the common portal either directly or through a Facilitation Centre notified by the Commissioner:

Provided that a person paying tax under section 10 shall furnish the annual return in FORM GSTR-9A.

(2) Every electronic commerce operator required to collect tax at source under section 52 shall furnish annual statement referred to in sub-section (5) of the said section in FORM GSTR – 9B.

(3) Every registered person whose aggregate turnover during a financial year exceeds two crore rupees shall get his accounts audited as specified under sub-section (5) of section 35 and he shall furnish a copy of audited annual accounts and a reconciliation statement, duly certified, in FORM GSTR-9C, electronically through the common portal either directly or through a Facilitation Centre notified by the Commissioner.