1.1 CONCEPT AND TYPES OF INDIRECT TAX | unit 1 introduction

GST

UNIT I

INTRODUCTION

1.1 CONCEPT AND TYPES OF INDIRECT TAX

What is a tax? A tax may be defined as a "pecuniary burden laid upon individuals or property owners to support the Government, a payment exacted by legislative authority. A tax "is not a voluntary payment or donation, but an enforced contribution, exacted pursuant to legislative authority".

In simple words, tax is nothing but money that people have to pay to the Government, which is used to provide public services.

Indirect Taxes: If the taxpayer is just a channel or medium and at every stage the tax- incidence is passed on till it finally reaches the consumer, who really bears the burden, such tax is indirect tax. An indirect tax is one that can be shifted by the taxpayer to someone else.

Its incidence is borne by the consumers who ultimately consume the product or the service, while the immediate liability to pay the tax may fall upon another person such as a manufacturer or provider of service or seller of goods.

Also called consumption taxes, they are regressive in nature because they are not based on the principle of ability to pay. All the consumers, including the economically challenged bear the brunt of the indirect taxes equally.

Indirect taxes are levied on consumption, expenditure, privilege, or right but not on income or property. Earlier, a number of indirect taxes were levied in India, namely, excise duty, customs duty, service tax, central sales tax (CST), value added tax (VAT), entry tax, purchase tax, entertainment tax, tax on lottery, betting and gambling, luxury tax, tax on advertisements etc.

However, indirect taxation in India witnessed major shift on July 01, 2017 with into a unified indirect tax regime wherein a large number of Central and State indirect taxes were combined into a single tax – Goods and Services Tax (GST). The introduction of GST has been a very significant step in the field of indirect tax reforms in India. Customs duty continues in post-GST regime.

1.2 RIGHT TO IMPOSE INDIRECT TAX BY CENTRE (UNION)/ STATE AND UNION TERRITORY GOVERNMENTS BEFORE AND AFTER 101TH AMENDMENT IN CONSTITUTION OF INDIA

India has a three-tier federal structure, comprising the Union Government, the State Governments and the Local Government.

The power to levy taxes and duties is distributed among the three tiers of Governments, in accordance with the provisions of the Indian Constitution.

The Constitution of India is the supreme law of India. It consists of a Preamble, 25 parts containing 448 Articles and 12Schedules.

Power to levy and collect taxes whether, direct or indirect emerges from the Constitution of India. In case any tax law, be it an act, rule, notification or order is not in conformity with the Constitution, it is called ultra vires the Constitution and is illegal and void.

Thus, a study of the basic provisions of the Constitution is essential for understanding the genesis of the various taxes being imposed in India.

The significant provisions of the Constitution relating to taxation are:

Article 265: Article 265 of the Constitution of India prohibits arbitrary collection of tax. It states that “no tax shall be levied or collected except by authority of law”. The term “authority of law” means that tax proposed to be levied must be within the legislative competence of the Legislature imposing the tax.

Article 245: Part XI of the Constitution deals with relationship between the Union and States. The power for enacting the laws is conferred on the Parliament and on the Legislature of a State by Article 245 of the Constitution. The said Article provides asunder:

a) Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the legislature of a State may make laws for the whole or any part of the State.

b) No law made by the Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation.

III. Article 246:It gives the respective authority to Union and State Governments for levying tax. Whereas Parliament may make laws for the whole of India or any part of the territory of India, the State Legislature may make laws for whole or part of the State.

IV. Seventh Schedule to Article 246: It contains three lists which enumerate the matters under which the Union and the State Governments have the authority to make laws.

V. Article 246A: Power to make laws with respect to Goods and Services Tax

a) This article grants power to Centre and State Governments to make laws with respect to GST imposed by Centre or such State.

b) Centre has the exclusive power to make laws with respect to GST in case of inter-State supply of goods and/or services.

c) However, in respect to the following goods, the aforesaid provisions shall apply from the date recommended by the GST Council:

d) The provisions of Article 246A are notwithstanding anything contained in Articles 246 and 254. Article 254 deals with the supremacy of the laws made by Parliament.

VI. Article269A: Levy and collection of GST on inter-State supply

a) Article 269A stipulates that GST on supplies the course of inter-State trade or commerce shall be levied and collected by the Government of India and such tax shall be apportioned between the Union and the States in the manner as may be provided by Parliament by law on the recommendations of the Goods and Services Tax Council.

b) In addition to above, import of goods or services or both into India will also be deemed to be supply of goods and/ or services in the course of Inter-State trade or Commerce.

c) This will give power to Central Government to levy IGST on the import transactions which were earlier subject to Counter availing duty under the Customs Tariff Act, 1975.

d) Where an amount collected as IGST has been used for payment of SGST or vice versa, such amount shall not form part of the Consolidated Fund of India. This is to facilitate transfer of funds between the Centre and the States.

e) Parliament is empowered to formulate the principles regarding place of supply and when supply of goods, or of services or both occurs in inter-State trade or commerce.

1.3 INTRODUCTION OF GST IN INDIA

GENESIS OF GST IN INDIA

1) In the year 2000, the then Prime Minister mooted the concept of GST and set up a committee to design a Goods and Services Tax (GST) model for the country. In 2003, the Central Government formed a task force under Vijay Kelkar, which in 2004 strongly recommended fully integrated ‘GST’ on national basis.

2) Subsequently, the then Union Finance Minister, Shri P. Chidambaram, while presenting the Union Budget (2006-2007), announced that GST would be introduced from April 1, 2010. Since then, GST missed several deadlines and continued to be uncertain.

3) However, GST regime gained momentum in the year 2014 when the NDA Government tabled the Constitution (122nd Amendment) Bill, 2014 on GST in the Parliament on 19thDecember, 2014. The Lok Sabha passed the Bill on 6thMay, 2015 and Rajya Sabha on 3rd August, 2016. Subsequent to ratification of the Bill by more than 50% of the States, Constitution (122ndAmendment) Bill, 2014 received the assent of the President on 8th September, 2016 and became Constitution (101stAmendment) Act, 2016, which paved the way for introduction of GST in India.

4) In the following year, on 27thMarch, 2017, the Central GST legislations - Central Goods and Services Tax Bill, 2017, Integrated Goods and Services Tax Bill, 2017, Union Territory Goods and Services Tax Bill, 2017 and Goods and Services Tax (Compensation to States)Bill, 2017 were introduced in Lok Sabha. Lok Sabha passed these bills 29thMarch, 2017 and with the receipt of the President’s assent on 12thApril, 2017, the Bills were enacted. The enactment of the Central Acts was followed by the enactment of the State GST laws by various State Legislatures. Telangana, Rajasthan, Chhattisgarh, Punjab, Goa and Bihar were among the first ones to pass their respective State GST laws. By 30th June, 2017, all States and Union Territories had passed their respective SGST and UTGST Acts except Jammu and Kashmir. With effect from 1st July, 2017, the historic indirect tax reform - GST was introduced. GST law was extended to Jammu and Kashmir on 8th July,2017.

5) GST has subsumed multiple indirect taxes like excise duty, service tax, VAT, CST, luxury tax, entertainment tax, entry tax, etc.

EXTENT AND COMMENCEMENT OF GST IN INDIA

Extent:

Part I of the Constitution of India states: “India, that is Bharat, shall be a Union of States”. It provides that territory of India shall comprise the States and the Union Territories specified in the First Schedule of the Constitution of India. The First Schedule provides for twenty-nine (29) States and seven (7) Union Territories.

Part VI of the Constitution of India provides that for every State, there shall be a Legislature, while Part VIII provides that every Union Territory shall be administered by the President through an ‘Administrator’ appointed by him. However, the Union Territories of Delhi and Puducherry have been provided with Legislatures with powers and functions as required for their administration.

India is a summation of three categories of territories namely – (i) States (29); (ii) Union Territories with Legislature (2); and (iii) Union Territories without Legislature (5).

The State of Jammu and Kashmir enjoys a special status in the Indian Constitution in terms of Article 370 of the Indian Constitution. The Parliament has power to make laws only on Defence, External Affairs and Communication related matters of Jammu and Kashmir. As regards the laws related on any other matter, subsequent ratification by the Government of Jammu and Kashmir is necessary to make it applicable to that State.

Therefore, the State of Jammu & Kashmir were required to pass special laws to be able to implement the Goods and Services Tax Acts. Accordingly, the assembly of J&K passed the GST bill in the first week of July. Subsequently, Honourable President of India had promulgated two ordinances, namely, the CGST (Extension to Jammu and Kashmir) Ordinance, 2017 and the IGST (Extension to Jammu and Kashmir) Ordinance, 2017 making the CGST/ IGST applicable to the State of Jammu and Kashmir, w.e.f. 8th July, 2017. Once the laws are passed by the State of Jammu & Kashmir, the Union Government will have to amend the Central Goods and Services Act, 2017 to delete the phrase that such provisions do not apply to the State of Jammu & Kashmir. After the promulgation of ordinance, India has adopted GST in its form across the country.

Commencement:

The CGST Act came into operation on 01.07.2017, the date appointed by the Central Government. However, certain provisions i.e. Sections-1,2,3,4,5,10,22,23,24,25,26,27,28,29, 30,139, 146,164 were made effective form 22.6.2017.

MEANING AND DEFINITION OF GST

The goods and services tax (GST) is a value-added tax levied on most goods and services sold for domestic consumption. The GST is paid by consumers, but it is remitted to the government by the businesses selling the goods and services.

GST, or Goods and Services Tax, is a tax that customers have to bear when they buy any goods or services, such as food, clothes, electronics, items of daily needs, transportation, travel, etc. The concept of GST is that it is an “Indirect Tax”, i.e., this tax is not directly paid by customers to the government, but is rather levied on the manufacturer or seller goods and the providers of services. The sellers usually add the tax expense into their costs, and the price the customers pay is inclusive of GST. Thus, in most cases, you end up paying a tax even if you are not an income taxpayer.

BENEFITS OF GST

The following are the benefits of the GST:

1) Elimination of the cascading tax effect

With the introduction of GST i.e., Goods and Services Tax, all the taxes have been brought under a single sunshade. This means the cascading tax effect has been eliminated. The GST rate applicable to the service would be 18%.

2) Higher threshold

In the VAT charging system, the business having the turnover above Rs.5 lakhs are accountable to pay VAT. Even the service providers who get a turnover of Rs.10 lakhs were free from service tax. Though, the beginning of the registration under GST is Rs.20 lakhs.

3) Manageable procedure

The whole GST process, beginning from registration and ending with filing returns, is done online. It is a manageable procedure that can be matched even by individuals with minimum technical know-how. Registering under GST is especially easy because there is no requirement to run around for multiple registrations like Service Tax, Excise Duty, VAT, etc.

4) Composition scheme

Small businesses that get turnovers between Rs.20 lakh and Rs.75 lakh can benefit under the new tax regime as the Composition Scheme can help in reducing their taxes. The compliance and tax burden on small businesses has significantly decreased thanks to the implementation of GST.

5) Simplified compliances

The earlier tax regime had Service Tax and Value Added Tax, and each of these taxes had their compliances and returns. For instance, Excise Duty return filing had to be made every month, while Service Tax return filing had to be made every month for companies and LLPs, and all quarter for partnerships and proprietorships. Value Added Tax was different in different states, which appeared in inconsistencies over the country. The execution of GST has ensured all businesses pay a uniform tax for the supply of goods and services.

6) E-Commerce operators no longer undergo from differential processing

Before the execution of the Goods and Services Tax, there was no proper definition for the supply of goods by an e-commerce portal. There were many VAT laws. GST has completely done away with such confusing compliances and differential treatments. The e-commerce sector now has simply set provisions that make it easier to engage in the supply of products over states.

7) Regulation of the unorganized sector

Before the introduction of GST and its execution, many industries like constructions and textiles were considered unorganized. The execution of GST has added provisions for online compliance and payments. Even the availing of input credit has been clearly explained to avoid confusion, thus bringing in regulation and accountability to these sectors.

1.4 DEFINITIONS

Actionable claim will have the significance assigned to it in section 3 of the Transfer of Property Act, 1882 (4 of 1882), which refers to a claim on any unsecured debt or any beneficial interest in movable property of the claimant.

Address of delivery refers to the address of the recipient of goods and/or services indicated on the tax invoice issued by a taxable person for delivery of such goods and/or services.

Address on record means the address of the recipient as noted in the files of the supplier. This may or may not be the same as the address of delivery.

Adjudicating authority means any authority competent to pass any order or decision relating to the GST Act, but does not include the Central Board of Excise and Customs, the Revisional authority, authority for the advance ruling, appellate authority for an advance ruling, appellate authority, or the appellate tribunal.

Aggregate turnover means the total value of all taxable supplies, exempt supplies, exports of goods and/or services, and interstate supplies of a person having the same PAN, computed on the pan-India basis and excluding taxes. However, the value of inward supplies on which taxation is based on reverse-charge mechanism shall not be admitted.

Appellate tribunal means the Goods and Services Tax Appellate Tribunal set up under section 109.

Application Service Providers (ASPs) are like GST Suvidha Providers (GSPs) but are more wholesome than GSPs. The support provided by ASPs will address most taxpayer compliance difficulties as they work as a liaison between the taxpayers and the GSPs.

Appropriate government refers to the Central Government for IGST, UTGST and CGST, and the State Government for SGST.

Assessment means the determination of tax liability inclusive of self-assessment, re-assessment, provisional assessment, summary assessment, and best judgment assessment.

Business: Any trade, commerce, manufacture, profession, vocation or any other similar activity can be called as Business under GST. It can either be a core or an ancillary activity whether or not involving monetary benefits.

Capital goods are goods that are capitalized in the books of accounts of the person claiming the credit and are intended to be used during business.

Casual taxable person is a person occasionally undertaking transactions involving the supply of goods and/or services during business, whether as principal, agent or in any other capacity, in a taxable territory where he has no fixed place of business.

CGST is the tax levied under the Central Goods and Services Tax Act, 2016.

Common portal refers to the online GST portal approved by the Central and State Governments, on the recommendation of the council.

Composite supply means a supply consisting of two or more goods and/or services, which are naturally bundled and provided together, one being a principal supply.

Consideration relates to the supply of goods or services involving:

Any payment made or to be made, whether in money or kind.
Monetary value of any act or forbearance, whether or not voluntary.

However, the subsidy given by the Central and/or State Governments are not included.

17. Council refers to the Goods and Services Tax Council set up under Article 279A of the Constitution.

18. Credit note means a document issued by a taxable person in relation to the tax invoice exceeding the taxable value and/or tax payable in respect of supply, or where the goods supplied are returned by the recipient, or where the services supplied are found to be deficient.

19. Debit note means a document issued by a taxable person relating to the taxable value and/or tax charged as per the tax invoice when found to be less than the taxable value and/or tax payable in respect of such supply.

20. Digital signature certificate (DSC) refers to a secure digital key that certifies the identity of the holder, issued by a Certifying Authority (CA). It typically holds information about the identity of the holder. It is the digital equivalent of a handwritten signature.

21. Electronic commerce means the supply of goods and/or services including digital products over a digital or electronic network.

22. Exempt supply means supply of any goods and/or services that are not taxable and includes such supply of goods and/or services that attract zero rate of tax or that may be exempt from tax per section 11.

23. Fixed establishment is a place, other than the place of business, that has a sufficient degree of permanence and suitable structure regarding human and technical resources as to supply/receive/use services for its own

24. Forward charge means the tax liability of the supplier of goods and/or services to levy the tax on the recipient of the goods and/or services and to remit the same to the credit of the government.

25. Fund means the Consumer Welfare Fund set up under section 57 by the Central Government.

26. Goods refers to all types of movable property, including actionable claim, growing crops, grass, and things attached to the land that are agreed to be severed before supply or under a contract of supply. Excludes securities and money.

27. Goods and Services Tax Network (GSTN) is a non-profit, public-private partnership company. Its main purpose is to provide IT infrastructure and services to Central and State Governments, taxpayers, and other stakeholders to facilitate the implementation of GST.

28. GST Suvidha Provider (GSP) refers to third-party applications that assist the taxable person in accessing the GST portal in an enriched manner by being more user-friendly and customer-centered.

29. Harmonized System Nomenclature (HSN) Code is a numeral used to classify goods for taxation purposes provided by the World Customs Organization.

30. IGST means Integrated Goods and Services Tax Act, 2017. Integrated tax means the IGST levied under IGST Act, 2017.

31. Input service distributor means an office of the supplier of goods and/or services that receives tax invoices issued under section 31 toward the receipt of input services and issues a prescribed document for distributing the credit of CGST, SGST, UTGST and/or IGST paid for the said services.

32. Input tax in relation to a regisfixedtered person, means the central tax, state tax, integrated tax or Union territory tax charged on any supply of goods or services or both made to him and includes:

IGST charged on the import of goods.

Tax payable under subsections (3) and (4) of section 9.

Tax payable under subsections (3) and (4) of section 5 of the IGST Act.

Tax payable under subsections (3) and (4) of section 9 of the respective SGST Act; or

Tax payable under subsections (3) and (4) of section 7 of the UTGST Act.

However, it does not include the tax paid under the composition levy.

33. Input tax credit means the credit of input tax.

34. Intrastate supply of goods means the supply of goods during intrastate trade or commerce regarding subsection (1) of section 8 of IGST Act, 2017.

35. Intrastate supply of services means the supply of services during intrastate trade or commerce regarding subsection (2) of section 8 of IGST Act, 2017.

36. Invoice shall have the meaning as assigned to “Tax Invoice” as under section 31.

37. Inward supply refers to the receipt of goods and/or services, whether by purchase, acquisition, or any other means, and with or without any consideration.

38. Job work means undertaking any treatment or process by a person on goods belonging to another registered taxable person.

39. Local authority means:

Panchayat as defined in clause (d) of Article 243 of the Constitution

Municipality as specified in clause (e) of Article 243P of the Constitution

A municipal committee, a zilla parishad, a district board, and any other authority legally entitled to or entrusted by the Central or any State Government with the control or management of a municipal or local fund

Cantonment board as defined in section 3 of the Cantonments Act, 2006 (41 of 2006)

Regional council or a district council formed under the Sixth Schedule to the Constitution

Development board formed under Article 371 of the Constitution

Regional council formed under Article 371A of the Constitution

Market value refers to the full amount that a recipient of supply would pay to obtain the goods and/or services of like kind and quality at or about the same time and at the same commercial level, where the recipient and supplier are not related.

Mixed supply means two or more individual supplies of goods and/or services made together by a taxable person for a single price where such supply does not form a composite supply.

Non-resident taxable person is someone who occasionally undertakes transactions involving the supply of goods and/or services, whether as principal or agent, or in any other capacity, but with no fixed place of business in India.

Output tax means the CGST/SGST on taxable supply of goods and/or services made by a taxable person or by his agent. Excludes tax payable on a reverse-charge basis.

Outward supply refers to the supply of goods and/or services, whether by sale, transfer, barter, exchange, license, rental, lease, or disposal, or any other means made or agreed to be made during business.

Person includes:

An individual.
A Hindu undivided family.
A company.
A firm.
A Limited Liability Partnership.
An association of persons or a body of individuals, whether incorporated or not, in India or outside India.
Any corporation set up by or under any Central, State, or Provincial Act or a government company as defined in section 2(45) of the Companies Act, 2013 (18 of 2013).
A body corporate incorporated by or under the laws of a country outside India.
A cooperative society registered under any law relating to cooperative societies.
A local authority.
Central government or a State government..
Society as defined under the Societies Registration Act, 1860 (21 of 1860).
A trust.
Every artificial juridical person, not falling within any of the preceding sub-clauses.

Place of business includes:

A place from where the business is ordinarily carried on, including a warehouse, a godown, or any other place where a taxable person stores his goods, or provides or receives goods and/or services
A place where a taxable person keeps his books of account
A place where a taxable person is engaged in business through an agent

Principal means a person on whose behalf an agent carries on the business of supply or receipt of goods and/or services.

Principal place of business means the location of business specified as the principal place of business in the certificate of registration.

Principal supply means the supply of goods and/or services that form the significant element of a composite supply and any other related supply being ancillary.

Recipient of supply of goods and/or services means:

Where the consideration is payable, the person liable to pay that consideration.
Where no consideration is payable, the person to whom the goods and/or services are delivered/rendered or made available.

Includes an agent working on behalf of the recipient in relation to the goods and/or services provided.

51. Registered importer refers to the importer registered per the provisions of Central Excise Rules, 2002.

52. Related persons include:

Officers or directors of one another's business.

Legally recognised partners in business.

The employer and the employee.

Someone who directly or indirectly owns, controls, or holds 25 percent or more of the outstanding voting stock or shares of both.

One of them directly or indirectly controls the other.

A third person directly or indirectly controls both.

Together they directly or indirectly control a third person.

They are members of the same family.

Removal in relation to goods means:

Dispatch of the goods for delivery by the supplier or by any other person acting on behalf of such supplier.
Collection of the goods by the recipient or by any other person acting on behalf of such recipient.

Return refers to any return prescribed or required to be furnished.

Reverse charge means the tax liability on the recipient of the supply of goods and/or services instead of the supplier of such goods and/or services.

Securities shall mean as per subsection (h) of section 2 of the Securities Contracts (Regulation) Act, 1956 (42 of 1956).

Services means anything other than goods, money and securities but includes activities relating to the use of money or its conversion by cash or by any other mode, from one form, currency or denomination, to another form, currency or denomination for which a separate consideration is charged.

SGST means the State Goods and Services Tax Act, 2017. State tax means the tax imposed under SGST Act, 2017.

Supplier signifies the person providing the said goods and/or services and shall include an agent acting as such on behalf of such supplier about the goods and/or services provided.

Supply includes all forms of supply of goods and/or services such as sale, transfer, barter, exchange, license, rental, lease, or disposal made or agreed to be made for a consideration by a person in the course of business and also includes import of services for a consideration whether or not in the course of business.

Taxable person is an individual who carries on any business at any place in any state of India and who is registered or required to be registered under GST.

Turnover in a state or in Union Territory means the aggregate value of all taxable supplies, exempt supplies, exports of goods and/or services made within a state or Union Territory by a taxable person and interstate supplies of goods and/or services made from the state or Union Territory excluding taxes. Like aggregate turnover, the value of inward supplies on which taxation is based on reverse-charge mechanism shall not be admitted.

Usual place of residence means:

In the case of an individual, the place where he ordinarily resides
In other cases, the place where the person is incorporated or otherwise legally constituted

Zero-rated supply, as per section 16 of IGST Act, 2017, means supply of any goods and/or services including:

export of goods or services or both; or
supply of goods or services or both to a Special Economic Zone developer or a Special Economic Zone unit.

1.5 GST MODELS- SINGLE GST AND DUAL GST

The Model of GST laws is generally governs by the politico-economic arrangement of the country in subject. Unitary nature of company does not require to adopt a dual nature of GST, where as a strong federal country need to adopt Dual model of GST. National GST model is generally adopted by those countries where the level of trust between Union and state at it best.

Models of GST

The world is divided on the adoption of GST model every country have their own GST laws and are unique in nature itself however in broader sense the GST adopted by the different countries can be classified under four broader categories:

Single National GST.

Single State GST.

Non Concurrent Dual GST.

Concurrent Dual GST.

Single National GST

National GST is one of the peculiar models of GST wherein two level of Government viz. the Centre and the State, combine their levies in the form of a single National GST alongwith appropriate revenue sharing arrangements among them. In simple words, under this model, taxes are levied by the center with provision for revenue sharing with the provinces/states.

Australia is most recent example of a National GST, which is levied and collected by the centre, but the proceeds of which are allocated entirely to the States. In China, the VAT law and administration is centralised, but revenues are shared with the province.

The single National GST is an ideal model for promotion and establishment of a common market in a country.

India has strong federal structure of governance wherein every state is enjoying fiscal autonomy. The Single National is not possible because there is not adequate level of trust between state and centre and states do not want lose is fiscal autonomy.

Single State GST

This model is inverse of the Single National GST model, under this model GST would be levied by the State only and Centre relinquish its entitle to collect GST. USA is the most prominent example of this kind of model.

In India the adoption of this kind of model is not viable as by adopt as by adopting this model Union will have huge loss of revenue. Compliance with tax laws of each state will also be very difficult as each may adopt different rate, procedure, return etc of GST.

Non-concurrent Dual GST

This model is designed to enable State to levy taxes on all goods and Centre is entitled to collect tax on all services. This model was suggested by Poddar-Ahmed Working to avoid constitutional amendment.

This model was also not adopted as this model not able to address the existing problem of cascading and dual taxation.

Concurrent Dual GST

As the name suggests, under this model, a concurrent or dual GST is levied by the Centre and State on both goods and services. This model is based on concept of sharing of revenue by State and Center to create good balance between fiscal autonomy of state and the union.

The Concurrent Dual GST model has been successfully implemented in Canada and Brazil where this model proved to be an efficient model to remove cascading effect of taxation and create fiscal balance between Union and State.

Kelkar Committee suggested this model as an ideal model for Indian Indirect tax reform.

The advantage of Concurrent Dual GST model are as below:

It create good balance of fiscal autonomy of State and Centre.

It Empowers both state and central governments to apply the tax to comprehensive base of goods and services, at all level of supply chain.

Since India has a federal structure of governance, the fiscal needs of both the Union and the States have to be catered. There is a general consensus among the States and Union Governments and other stakeholders to adopt Concurrent Dual GST which is consistent with the federal philosophy of the country. The Concurrent Dual GST will enable State and Centre to charge a similar transaction at the same point of time fro the same even, it will have two components: one levied by the Centre (hereinafter referred to as Central GST), and the other levied by the States (hereinafter referred to as State GST)

This dual GST model would be implemented through multiple statutes (one for CGST and SGST statute for every State). However, the basic features of law such as chargeability, definition of taxable event and taxable person, measure of levy including valuation provisions, basis of classification etc. would be uniform across these statutes as far as practicable.

Charging of SGST and CGST from a common base and event, through a concurrent dual GST would kill two birds with one stone. On the one hand, it would ensure fiscal autonomy of states and on the other, it would preserve the regulatory powers of the Centre. Concurrent Dual GST scores over other models in many respects.

1.6 TYPES OF GST- CGST, SGST/UTGST, IGST

These are basically the taxes applicable now in the current regime under the GST system:

1) Central Goods and Services Tax (CGST):

CGST is imposed on the intra-state supply of products and services. The Central Government levies CGST and it is supervised by the Central Goods and Services Tax Act. CGST has completely replaced all the past Central taxes such as Central Excise Duty, Customs Duty, Service Tax, SAD, CST, etc. It is charged to taxpayers with SGST. The rate at which CGST is charged is usually the same as the SGST rate, and the revenue collected under CGST is sent to the Central Government.

2) State Goods and Services Tax (SGST):

SGST the same CGST discussed above. It is charged on the sale of products or services within a state. The State Government is liable for the levy of SGST. This tax replaces all the earlier taxes such as Entry Tax, Value Added Tax, Entertainment Tax, State Sales Tax, cesses, and surcharges. The revenue collected under SGST is sent to the State Government.

3) Integrated Goods and Services Tax (IGST):

IGST is imposed on inter-state transactions of products and services. It is also levied on imports. The shifted from one state to another. The tax was executed so that states would only have to deal with the Union Government rather than dealing with all states.

4) Union Territory Goods and Services Tax (UTGST):

UTGST is levied on the supply of products and services in any of the Union Territories in the country, like Andaman and Nicobar Islands, Daman and Diu, Dadra and Nagar Haveli, Lakshadweep, and Chandigarh. UTGST is levied along with CGST.

1.7 LEVY AND COLLECTION OF GST

Section 9 of CGST Act/SGST Act and Section 5 of IGST Act are the Charging Sections for the purposes of levy of GST.

CGST and SGST shall be levied on all intra-state supplies of goods and/or services and IGST shall be levied on all inter-state supplies of goods and/or services respectively.

A. Levy and Collection of GST under CGST Act. (Section 9)

1. Levy of central goods and service tax [Section 9(1)]:

Under CGST Act, central tax called as the central goods and services tax (CGST) shall be levied on all intra-State supplies of goods or services or both, except on the supply of alcoholic liquor for human consumption.

It shall be levied on the value determined under section 15 and at such rates, not exceeding 20%, as may be notified by the Government on the recommendations of the Council and collected in such manner as may be prescribed and shall be paid by the taxable person. [Similar rates have been prescribed under SGST/UTGST]

2. Central tax on petroleum products to be levied from the date to be notified [Section 9(2)]:

The central tax on the supply of petroleum crude, high speed diesel, motor spirit (commonly known as petrol), natural gas and aviation turbine fuel shall be levied with effect from such date as may be notified by the Government on the recommendations of the Council.

3. Tax payable on reverse charge basis [Section 9(3)]:

The Government may, on the recommendations of the Council, by notification, specify categories of supply of goods or services or both, the tax on which shall be paid on reverse charge basis by the recipient of such goods or services or both.

Further, all the provisions of this Act shall apply to such recipient as if he is the person liable for paying the tax in relation to the supply of such goods or services or both.

4. Tax payable on reverse charge if the supplies are made to a registered person by unregistered person [Section 9(4)]:

The central tax in respect of the supply of taxable goods or services or both by a supplier, who is not registered, to a registered person shall be paid by such person on reverse charge basis as the recipient and all the provisions of this Act shall apply to such recipient as if he is the person liable for paying the tax in relation to the supply of such goods or services or both. [Section 9(4) has been deferred till 30.6.2018]

5. Tax payable on intra-State supplies by the electronic commerce operator on notified services [Section 9(5)]:

As per section 2(45) of the CGST Act, 2017, “electronic commerce operator” means any person who owns, operates or manages digital or electronic facility or platform for electronic commerce.

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

Thus, Electronic Commerce Operators (ECO), like flipkart, uber, makemy-trip, display products as well as services which are actually supplied by some other person to the consumer, on their electronic portal. The consumers buy such goods/services through these portals. On placing the order for a particular product/service, the actual supplier supplies the selected product/service to the consumer. The price/consideration for the product/service is collected by the ECO from the consumer and passed on to the actual supplier after the deduction of commission by the ECO.

The Government may, on the recommendations of the Council, by notification, specify categories of services the tax on intra-State supplies of which shall be paid by the electronic commerce operator (ECO), if such services are supplied through it.

Further, all the provisions of this Act shall apply to such electronic commerce operator (ECO) as if he is the supplier liable for paying the tax in relation to the supply of such services.

However, where an electronic commerce operator (ECO) does not have a physical presence in the taxable territory, any person representing such electronic commerce operator (ECO) for any purpose in the taxable territory shall be liable to pay tax.

Where an electronic commerce operator (ECO) does not have a physical presence in the taxable territory and also he does not have a representative in the said territory, such electronic commerce operator shall appoint a person in the taxable territory for the purpose of paying tax and such person shall be liable to pay tax.

The Government vide Notification No. 17/2017 CT (R) dated 28.06.2017 has notified the following categories of services supplied through ECO for this purpose—

services by way of transportation of passengers by a radio-taxi, motorcab, maxicab and motor cycle;

services by way of providing accommodation in hotels, inns, guest houses, clubs, campsites or other commercial places meant for residential or lodging purposes, except where the person supplying such service through electronic commerce operator is liable for registration under section 22(1) of the CGST Act.

B. Levy and Collection of GST under IGST Act. (Section 5)

The provisions under section 5 of the IGST Act are similar to section 9 of CGST Act except— the word CGST has been substituted by IGST under IGST Act, tax called integrated tax is to be levied on all inter-state supplies and on goods imported into India, maximum rate under section 5(1) of the IGST Act is 40% (i.e. 20% CGST + 20% UTGST).

C. Levy and Collection of GST under UTGST Act. (Section 7)

The provisions under section 7 of the UTGST Act are similar to section 9 of CGST Act except— the word CGST has been substituted by the word UTGST under UTGST Act, tax called UT tax is to be levied on all intra-State supplies, maximum rate under section 7(1) of UTGST Act is 20%.

References:

Taxmann’s Indirect Taxes Law and Practice, V.S. Datey.

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