UNIT I

Introduction

Q1) What is indirect tax?

A1) 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.

Q2) Write a note on right to impose indirect tax by centre(union)/ state and union territory governments before and after 101th amendment in constitution of India.

A2) 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:

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.

Q3) Explain the genesis of GST in India.

A3)

a)     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.

b)    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.

c)     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.

d)    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.

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

Q4) Write a note on extent and commencement of GST in India.

A4)

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.

Q5) What is GST?

A5) 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.

Q6) Discuss the benefits of GST?

A6) The following are the benefits of the GST:

a)  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%.

b)  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.

c)  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. 

d)  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. 

e)  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.

f)    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. 

g)  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.

Q7) What are the different GST models?

A7) 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:

a)     Single National GST.

b)    Single State GST.

c)     Non Concurrent Dual GST.

d)    Concurrent Dual GST.

Q8) What is Single National GST?

A8) 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.

Q9) What is Single State GST?

A9) 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.

Q10) What is non- concurrent dual GST?

A10) 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.

Q11)What is Concurrent Dual GST?

A10) 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:

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

b)    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.

Q12) Discuss the different types of GST.

A12) These are basically the taxes applicable now in the current regime under the GST system:

a)     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. 

b)    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. 

c)     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. 

d)    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.

Q13) Write a note on levy and collection of tax.

A13) 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%.