1. INTRODUCTION
"One Country, One Tax, One Market" were the excited claims of the architects of the Constitution (One Hundred and First) Amendment Act, 2016, passed by the Rajya Sabha on 3rd August 2016 and the Lok Sabha on 8th August 2016 and which received the assent of the President on 8th September 2016 (the "Constitutional Amendment").
The Constitutional Amendment paves the way forward for a unified goods and services tax (the "GST") heralded as the most important reform in indirect taxation in India's independent history and one of the most important economic reforms since 1991.
It's probably not an understatement to say that no country in history has undertaken to dismantle and restructure its taxation system in such an ambitious manner. But are the optimists justified in the euphoria that's not often associated with matters such as tax?
What does the Constitutional Amendment do? Does it really pave the way for one tax at one rate? The devil, as always, is in the detail and in this article, we'll look at the provisions of the Constitutional Amendment, the draft model law that it contemplates and assess how successful it will be in paving the way towards a unified indirect tax market.
2. THE GIST
The GST has had a long and winding road until now and to say that tax reform is a complicated affair in a vibrant and diverse federal democracy like India is an understatement.
Historically, India's constitution did not invest power to either the Center or the States to tax the supply of goods and services. Up until now, the Center has been able to tax services and goods during the production stage and the States have been able to tax the sale of goods. The Center does not have the power to tax the sale of goods and the States do not have the power to tax the provision of services.
The primary intent of the legislature is to bring in uniformity and harmony to the existing indirect tax laws governing goods and services in India and introduction of the GST will require a restructuring of the tax eco-system relating to computation and compliances in tax law, leading to a total facelift of the existing indirect tax system.1
The first thing to understand is that the Constitutional Amendment is not the same thing as the actual GST. Put otherwise, it simply enables the future structuring of India's indirect tax regime on goods and services, setting out the broad parameters of its future shape and how it will be negotiated.
The GST is supposed to merge the current regime of Central and State indirect taxes into a single tax, by subsuming central excise duty, additional excise duty, service tax, additional customs duty, special additional duty of customs (currently collected by the Centre) with value added tax, entertainment tax, central sales tax, octroi and entry tax, purchase tax, luxury tax and taxes on lottery, betting and gambling (currently collected by the States).
As a result of the merging of these taxes, the GST is anticipated to be a single tax on the inter-state supply of goods and services, covering the entire supply chain from the manufacturer to the consumer. Credits for taxes paid at each stage of the value chain will be available in subsequent stages of value addition, which makes the GST essentially a tax only on value addition at each stage. The final consumer will therefore bear only the GST charged by the last dealer in the supply chain, with the seller benefiting from set-off from the tax paid on previous downstream transactions.
But to say that the GST is just one single tax is slightly misleading. It will have three separate components. There will be a tax collected by the Center on the inter-state supply of goods and services, which will be shared between the Center and the States, known as the integrated goods and services tax (the "IGST"). There will also be a tax in relation to the intra-state supply of goods and services, which will be collected by the Center (the "CGST") and the States (the "SGST"). In this context, it should be noted that IGST will essentially be the sum of the CGST and the SGST, to ensure revenue neutrality.
The Constitutional Amendment essentially paves the way for the Center to collect and share with the States, revenue arising from the inter-state transfer of goods and services through the IGST. In order to do this, the Parliament will need to pass the proposed Integrated Goods & Services Tax Act (the "IGST Act"). The supply of goods and services intra-state will be governed by two pieces of forthcoming legislation, the Central Goods & Services Tax Act (the "CGST Act") and the State Goods & Services Tax Act (the "SGST Act"), which will need to be passed by the Center and the States, respectively.
While the Constitutional Amendment is an enormous step forward in breaking the historic deadlock on the issue of indirect taxation, the need to choreograph a uniform GST across the Center and the States and the implementation of an efficient administrative system between the Center and the States to collect, audit and distribute the revenue will be complicated issues requiring further deliberation and resolution before the new regime can take effect.
3. THE CONSTITUTIONAL AMENDMENT
Let us now turn to the key terms of the Constitutional Amendment. Essentially, it permits the Center to levy a tax on the inter-state supply of goods and services.2 The revenue collected will be shared between the Centre and the States and to address the concerns of revenue loss by the States, the Centre will compensate the States for any loss of revenue for a period of up to 5 (five) years.3
The main highlights of the Constitutional Amendment are discussed below.
3.1 Powers of State and Union to frame GST laws
The Constitutional Amendment inserts a new article in the Constitution providing powers to the legislature of every State to make laws with respect to the GST imposed by the Union or such State. It provides the Parliament with the exclusive power with respect to GST where the supply of goods or services takes place in the course of inter-State trade or commerce. This essentially provides the framework for the anticipated IGST (in relation to inter-state supply of goods and services) and the CGST and SGST (in relation to the intra-state supply of goods and services).
3.2 Goods and Services Tax Council
The Constitutional Amendment sets out the framework for a Goods and Services Tax Council (the "Council") comprising of the Union Finance Minister as a chairperson and its members shall include the Union Minister of State in charge of Revenue or Finance and the Minister in charge of Finance or Taxation or any other Minister nominated by each State Government.
The Council has the authority to consider and approve the taxes, cesses and surcharges to be merged under the GST (perhaps implying discretion in leaving certain taxes out) and approve the draft model law for the implementation of the GST regime (allowing the IGST, CGST and SGST). The Council also has powers to consider what goods and services may be subjected or exempted from the GST, what threshold limits apply to entities subject to the GST (for example, exemptions if turnover falls below a particular value), the floor rates and bands for GST (which again, implies discretionary power to agree different rates for different classes of goods and services) as well as special provisions for particular States.
It should be noted that alcohol, the electricity market and petroleum products are currently excluded from the new regime, but it is anticipated that petroleum products will be brought within the purview of the GST in the future. At its last meeting in early November, the Council agreed to exempt items from GST, constituting up to 50 per cent of the weightage in the consumer price index basket.
How does the Council take decisions? The quorum for meeting requires at least 50 per cent of its total members and every decision of the Council shall be taken by a three quarter majority (75 per cent) of members present and voting. Given that the Center will have one third of the votes and the States will have two thirds of the vote, while the Center cannot be out-voted, it will require agreement of a substantial number of States to take decisions.
To date, the Council has met 4 (four) times. While it managed to agree on matters such as the threshold rates for businesses, anticipated to be Rs. 20 lakhs (except for businesses in the north eastern states, which is anticipated to be Rs. 10 lakhs), the division of administrative control over tax assessment has so far, proved to be problematic. It has been suggested that the States should have sole control over auditing businesses with a turnover of Rs. 1.5 crore or less, with dual administrative powers between the Center and the States for businesses above that threshold.
Some commentators suggest that dividing administrative competence on the basis of thresholds is a bad idea, since turnover inevitably changes from year to year, requiring the transfer of jurisdiction for audit and administrative costs associated with that. The prospect of having the Center and the States administer the regime may lead to inefficiencies in the system, with a potential additional burden for business compliance.
Up until now, the Council had been unable to decide what rates will apply to goods and services and the mechanism for compensating States that loose revenue under the new regime. What is almost certain is that it will not be a uniform rate for all goods and services. Latest indications in the media suggest that there will be different rates for different goods and services, falling broadly under 4 (four) bands set at 5 (five), 12 (twelve), 18 (eighteen) and 28 (twenty eight) per cent. In order to achieve compromise between stakeholders, multiple bands are perhaps unavoidable. Otherwise items currently taxed at low rates would necessarily become considerably more expensive for consumers at the lower end of the income pyramid.
But the further challenge in setting the rate (or rates) is finding numbers that will be revenue neutral for the Center and the States (that is, a figure that will not put either out-of-pocket, or otherwise, in-pocket). Ultimately, the question of how to fund the loss of revenue for States as India moves to the new regime is going to be paramount. It seems likely that this will be addressed through an additional cess, or an increase in the GST rates for luxury goods, rather than the Central Government raising revenue from other taxable sources or the debt markets. Should the Council opt for an additional cess, it raises the question as to whether it will apply to all stages of the production chain, or simply the last stage of it and the danger of cascading taxes returns.
3.3 Integrated GST
The Constitutional Amendment inserts a new article (Article 269A) in the Constitution relating to the levy and collection of IGST. It provides that the Centre may levy and collect IGST on supplies in the course of inter-State trade or commerce and the tax collected will be divided between the Centre and the States in a manner to be provided by Parliament, by law, on the recommendations of the Council. This provides the framework for the enactment of the contemplated IGST Act (discussed further in section 4 (The Model GST) below).
It should be noted that the amount apportioned to a State shall not form a part of the consolidated fund of India and that Parliament may, by law, formulate the principles for determining the place of supply, and when a supply of goods or services takes place in the course of inter-State trade or commerce. The Constitutional Amendment also states that the supply of goods or services in the course of import into India shall be deemed to be supply of goods or services in the course of inter-State trade or commerce.
3.4 Compensation to States
To address the risk of revenue imbalance as a result of the IGST, the provisions of the Constitutional Amendment provide that the Parliament shall, on the recommendation of the Council, provide compensation to the States for any loss of revenue from the date of introduction of the GST for a period of 5 (five) years. How this is going to be achieved is currently under discussion in the Council, though, as pointed out above, the possibility of an additional cess or the increase in rate of GST on luxury goods seems more likely to fund that deficit, rather than the Central Government raising new financing from other sources.
3.5 Transitional Provisions
The Constitutional Amendment provides that any provision of any law relating to the tax on goods or services in force in any State, which is inconsistent with the provisions of the Constitution as amended by the Constitutional Amendment shall continue to be in force until amended or repealed by a competent legislature or other competent authority or until expiration of 1 (one) year from the time when the Constitutional Amendment comes into force (8th September 2016), whichever is earlier.
Although the Government has set an ambitious target of 1st April 2017 for the implementation of the new regime, it begs the question as to what happens if the regime isn't implemented by 9th September 2017. Would this provision mean that the existing law governing indirect taxation will lapse on 8th September 2017, essentially leaving the Center and the States without the constitutional power to raise indirect taxes?
4. THE MODEL GST
To facilitate the roll out of the GST after the Constitutional Amendment, the Ministry of Finance released the draft of the model GST law into the public domain in June 2016 (the "Model GST").4 The Model GST contemplates the CGST Act, the SGST Act and the IGST Act. The IGST Act and the CGST Act will need to be passed by Parliament and each legislative assembly of each State will need to pass the SGST Act. We set out below the main highlights of the new regime below.
4.1 Defining Key Concepts
The Model GST defines key concepts including Services, Business, Consideration, Deemed Export and such other related aspects to bring out certainty in the taxing regime and it is essential that they remain uniform across the proposed IGST Act, the CGST Act and the SGST Act.
However, some definitions have been drafted with a very wide ambit. In particular, "Business" could include activities that may not give rise to any monetary benefit.5 Further, the definition of "Services" as meaning 'anything other than goods' may lead to ambiguity when read in light with other laws.
4.2 Taxable Person
The Model GST defines a "Taxable Person" to be any person who has an aggregate annual turnover exceeding INR 10,00,000 (Indian Rupees Ten Lakhs) (approximately USD 15,000) and carries on Business in any place in India and required to be registered under the Model GST. Government authorities have also been brought under the purview of the Model GST and shall be considered as Taxable Persons with respect to the activities they engage in. This provision in the Model GST brings in a uniform threshold for all the States with respect to the common activities with lower thresholds for special category States.6
Exemptions from the category of Taxable Persons are available to: (1) employees providing services to an employer in the course of employment; (2) persons engaged in supplying goods that are not subjected to tax under the Model GST; and (3) any person, liable to pay tax on a reverse charge basis, receiving services of value not exceeding the amount as may be prescribed in a year for personal use, other than for use in the course or furtherance of his business.7
4.3 Registration
The Model GST sets out a detailed procedure for the registration of Taxable Persons including non-resident Taxable Persons, specialized agencies such as the United Nations and other international organizations. With respect to registration, the Model GST makes it mandatory for every person obtaining registration to have a Permanent Account Number. Although the Model GST requires Taxable Persons to register within 30 (thirty) days of its application, the law is silent on the timeline for grant of such registration. Separate registration is permissible for different verticals of a single business within a State.
4.4 Supply of goods or services
The liability to pay tax under the Model GST arises at the time of supply of the goods or services (and not sale). CGST and SGST8 will be chargeable on the intra-state supply of goods and services and IGST will be chargeable on the inter-state supply of goods and services.
The Model GST lays down detailed parameters to determine when the supply has taken place. The value of a supply shall be the transaction value (i.e. the price that is actually paid for the goods and services). Further, the Model GST mandates that registered Taxable Persons supplying goods and services shall at the time of the supply issue a tax invoice bearing all details of the tax to be paid.
Note that the inter-state self-supply of goods and services (such as stock transfers) is taxable, even if there is no consideration. It is unclear at the moment whether an Intra-state stock transfers will attract CGST and SGST.
4.5 Input Tax Credit
Registered Taxable Persons shall be entitled to claim an Input Tax Credit (i.e. a credit for the amount of tax such person has paid) and such credit shall be available for set off against the GST payable by him. "Input" means any goods, other than capital goods, subject to exceptions as may be provided under the Model GST, used or intended to be used by a supplier for making an outward supply in the course or furtherance of business. It should be noted that the purchaser of goods and services shall not be able to claim Input Tax Credit in the event that the seller is not a registered Taxable Person under the new regime.
"Input Tax" has been defined in section 2 (57) of the Model GST as the tax charged on any supply of goods and/or services to him which are used, or are intended to be used, in the course or furtherance of his business.
The time limit for claiming Input Tax Credit is 1 (one) year from the date of the invoice. In other words, tax paid by the manufacturer on inputs is deducted from the tax payable on the output produced. This concept operates through the manufacturing and distribution stage of production. Thus, unlike earlier tax policies, under GST, the tax is proposed to be collected only at the place of consumption.9
A person willing to utilize Input Tax Credit shall claim the same within 1 (one) year from the date of invoice and should have possession of the tax invoice; receipt of the underlying supply of goods or services; evidence to confirm that the tax charged has been actually paid to the credit of the appropriate Government and should have submitted the return within the stipulated time period.10
Essentially, Input Tax Credit provides businesses with the benefit of taxes paid further down the supply chain and therefore, eliminates the cascading of tax by taxing only the value addition.
4.6 Returns
The Model GST requires Taxable Persons to electronically provide regular returns of outward and inward supplies, inward tax credit availed, tax payable and tax paid. Further, it is mandatory for Taxable Persons to file annual returns before the 31st of December following the end of the financial year. Along with the returns, the Taxable Person is required to file audited financial statements, an annual return and a reconciliation statement. Returns under the Model GST are divided into: (1) monthly returns; (2) tax deducted at source (TDS) returns; (3) first returns (return filed by the Taxable Person before the end of the month of registration under the Model GST); (4) annual returns; (5) final returns (return to be filed before cancellation of registration by a Taxable Person); and (6) others returns.
4.7 Refunds
Every Taxable Person claiming any refund under the Model GST shall be required to apply to the appropriate authority within 2 (two) years before expiry of the relevant date. The Model GST permits Taxable Persons to claim unutilized Input Tax Credit. When the amount claimed is less than INR 5,00,000 (Indian Rupees Five Lakhs only) (approximately USD 7,500) a mere declaration will be sufficient and no documentary evidence shall be required to be furnished.
4.8 Accounts and Records
Taxable Persons shall be responsible to maintain at the registered place of its business, books of accounts for a period of 60 (sixty) months from the last date of filing the annual returns. Additionally, such person shall also be bound to keep accounts that reflect a true and correct view of the production and supply of goods and services and details of any Input Tax Credit availed, if any. Where such Taxable Person is made a party to any proceeding or suit, he shall be responsible to maintain and keep all documents for a period of 1 (one) year from the date of disposal of such suit or proceeding.11
4.9 E-Commerce
With the growth of e-commerce activities, laws governing different sectors are evolving to include various business structures such as aggregators, facilitators and digital intermediaries. The Model GST also seeks to specifically cover the e-commerce sector and sets out specific guidelines for entities operating within this sector.
Such e-commerce companies are required, at the time of credit of any amount to the account of a supplier of goods and services, to collect an amount from the amount payable to the supplier. Such collected amounts shall be required to be paid to the appropriate government with 10 (ten) days of the end of the month. The Model GST attracts a relatively low penalty of INR 25,000 (Indian Rupees Twenty Five Thousand only) (approximately USD 375) for failure of e-commerce entities to provide information.
4.10 Transitional Provisions
Transitional provisions have been included in the Model GST specifying change of authorities, migration of the existing tax payer base (who shall be issued a provisional certificate of registration for a period of 6 (six) months), processing of existing refunds, CENVAT credit yet to be availed and treatment of long term construction contracts. In case of rise in price of pre-GST agreements, documents such as credit notes shall be required to be issued within 30 (thirty) days.12
4.11 Penalty
Historically, an area of dissatisfaction amongst taxpayers has been the propensity of the tax authorities to impose disproportionately high penalties for breaches of law, which may not be that serious. In order to address this concern, certain general principles have been incorporated in the Model GST. These principles include: (i) no substantial penalties shall be imposed for minor breaches of tax regulations or procedural requirements; (ii) no penalty shall be imposed in respect of any omission or mistake in documentation which is easily rectifiable and obviously made without fraudulent intent or gross negligence; and (iii) penalties shall be commensurate with the degree and severity of the breach.
5. CONCLUSION
The complexity of integrating a national indirect tax regime amongst a federal system of states is starting to make itself apparent in the meetings of the Council. Initial consensus on exemptions and the responsibility for administering the system seems to be eroding as the Center and the States grapple with the realities of how to transition the existing administrative regime to a new regime. What seems clear is that the idea of one tax anticipated by the GST is likely to be four taxes in a dual system.
Finalizing the rate structure and the mechanism for compensating States for loss of revenue will no doubt prove a difficult negotiation over the months to come and raising an additional cess on tobacco, aerated drinks and luxury goods at a high rate has been suggested by some. However, the problem with introducing a cess raises questions as to whether it will be a last point levy or a multi-point levy. If the latter, and there is no set-off mechanism, then a cascading of taxes will result: the very opposite of what the GST intends to achieve.
Excluding alcohol, the electricity market and deferring applicability to key petroleum products will mean that a convoluted tax (and the cascading of tax) will continue to apply in these sectors of the economy, somewhat contradicting the idea of creating a single tax market applying to all goods and services. In particular, excluding petroleum products will mean that Input Tax Credits may not be available in relation to the cost of manufacture of certain goods.
No doubt, the Parliament's winter session, scheduled to open on 16th November 2016 will be dominated by the need to pass the forms of the Model GST to give effect to the Constitutional Amendment and the Center will be hard pressed to implement the GST by April 2017.
The implementation of the GST is going to be complex affair and the implementation of the electronic payment architecture and institutions necessary to collect and distribute the revenue collected will be fraught with teething problems. Nevertheless, the new GST regime is an enormous achievement: harmonizing a system of indirect taxation by merging all indirect taxes into one tax (albeit in three different components).
The implementation of the GST will enlarge the tax base, increase compliance, eliminate to a great extent the cascading of taxes and reduce economic disturbances caused by different inter-state taxes: all necessary issues that must be dealt with if the Government is going to put in a solid framework for its flagship Make in India campaign.
Footnotes
1. http://www.ey.com/IN/en/Services/Tax/EY-goods-and-services-tax-gst
2. Clause 9 of the Constitutional Amendment, inserting Article 269A of the Constitution.
3. Clause 18 of the Constitutional Amendment.
4. The Model GST Law contains the drafts of the Goods and Services Tax Act, 2016 and the Integrated Goods and Services Tax Act, 2016.
6. D.S Rawat, Goods and Services Tax in India: Taking stock and setting expectations, http://www2.deloitte.com/content/dam/Deloitte/in/Documents/tax/in-tax-gst-in-india-taking-stock-noexp.pdf
7. Section 9(3), Goods and Services Tax Act, 2016, Model GST.
8. See section 7(1) of the CGST and the SGST and section 4(1) of the IGST
9. http://www.prsindia.org/uploads/media/Constitution%20122nd/Brief--%20GST,%202014.pdf
11. Section 47, the Goods and Services Tax Act, 2016, Model GST.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
