GST on advertising service offered by Company to foreign Co.

GST treatment on cross-border advertising services offered by Indian companies to foreign clients

The Circular No. 230/24/2024-GST, dated 10th September 2024, provides significant clarifications on the GST treatment of advertising services offered by Indian companies to foreign clients. This circular addresses important concerns related to the status of intermediaries, place of supply, and classification of such services as exports, which has been a topic of much debate. This circular helps to simplify compliance and eliminate ambiguity for businesses engaged in cross-border advertising services. Here are the key takeaways:

Non-Intermediary Status:

• Indian advertising companies providing services to foreign clients are not considered intermediaries.
• They are viewed as providing services on their own account, which means they are engaged directly in the advertising services rather than arranging or facilitating services.
• This classification ensures that the place of supply is the location of the foreign client, enabling these services to qualify as exports under GST law.

Clarification on the Recipient:

• The foreign client is confirmed as the recipient of the services, not the Indian representatives or the target audience within India where the advertisements may be shown.
• This is crucial in determining the place of supply and classifying the transaction as an export.

Place of Supply in P2P and P2A Arrangements:

• P2P (Principal-to-Principal):

  • In a P2P arrangement, the advertising agency provides comprehensive advertising services, including media planning, content creation, procurement of media space, etc.
  • The place of supply in P2P arrangements is the location of the recipient (foreign client), as per Section 13(2) of the IGST Act.
  • This means that the services provided by Indian advertising agencies to foreign clients qualify as exports, provided they meet the other conditions under Section 2(6) of the IGST Act.

• P2A (Principal-to-Agent):

  • In a P2A arrangement, the advertising agency acts as an intermediary, facilitating media space procurement for the foreign client without offering full advertising services.
  • In such cases, the agency is classified as an intermediary, and the place of supply is the location of the supplier (India) as per Section 13(8)(b) of the IGST Act.
  • Therefore, the services provided in P2A arrangements do not qualify for export benefits and are subject to GST in India.

Performance-Based Services Classification:

• The services provided by Indian advertising companies are not performance-based as defined under Section 13(3) of the IGST Act.
• This distinction is crucial because, under Section 13(3), performance-based services have their place of supply tied to the location where the service is performed. In the case of advertising services, the place of supply is determined by the recipient’s location, not the place of performance.

Export of Services:

• As the place of supply is considered outside India, when the foreign client is the recipient, the services meet the conditions of export of services under Section 2(6) of the IGST Act.
• This classification makes the services eligible for export benefits under GST, provided all conditions for export are fulfilled, such as receipt of payment in convertible foreign exchange or similar permissible forms.

Recipient of Services and the Target Audience:

• CBIC circular clarifies that the foreign client is considered the recipient of advertising services, not the target audience in India.
• The recipient is defined as the person liable to pay the consideration under Section 2(93) of the IGST Act.
• This distinction ensures that Indian advertising agencies can claim export benefits if the foreign client is the recipient, regardless of whether the advertisement targets an audience within India.

Why This Clarification Was Necessary:

• Prior to this clarification, the advertising industry faced significant challenges in cross-border transactions. Authorities often denied the export of services status to Indian agencies based on misinterpretation of the place of supply and recipient definitions.
• In particular, the target audience in India was sometimes incorrectly treated as the recipient of services, leading to denial of export benefits and imposition of GST.
• The P2P and P2A distinctions were often confused, resulting in uncertainty over whether advertising agencies acted as principals or intermediaries.

How the Advertising Industry Operates:

• The P2P model involves a full suite of advertising services offered by the agency, with the advertising agency taking on complete responsibility for the campaign, including media procurement, content creation, and planning.
• The P2A model, by contrast, involves the agency acting as a facilitator between the foreign client and media owners, without direct involvement in the creative or strategic aspects of the campaign.

Conclusion – Implications on advertising services on cross-border advertising services

• This clarification brings significant relief to Indian advertising companies by providing clear guidelines on their tax obligations when working with foreign clients. It facilitates the zero-rating of GST for advertising services exported to foreign clients, enhancing the competitiveness of Indian service providers in the global market.
• With this clarification, the CBIC has provided the much-needed clarity that will significantly reduce litigation and ease compliance for advertising agencies working with foreign clients. By clarifying the distinction between P2P and P2A arrangements and defining the place of supply and recipient of services, this circular allows advertising agencies to claim export benefits where appropriate and accurately determine their GST liabilities.