Work on the Various Aspects of GST: Recent Developments and Work Ahead :

(a) Model GST Law

The Model GST Law, jointly drafted by the tax officials of the Centre and States, has been placed on the website of the Ministry of Finance on 14th June, 2016 for suggestions/comments. The model CGST/SGST legislation contains 162 sections spread over 25 Chapters and 4 Schedules. The draft sets out the provisions of taxable event, taxable person, time of supply, valuation of supply and input tax credit. The draft also deals with the various administrative  and procedural aspects of levy, such as, registration, filing of returns, assessment, payment of tax, maintenance of accounts, refunds, audit, demands and recovery, inspection, search, seizure and arrest, offences and penalties, prosecution, appeals and revision, advance ruling and transitional provisions.

Under the GST regime, tax is payable by the taxable person on the supply of goods and/or services. Liability to pay tax arises when the taxable person crosses the threshold exemption, i.e. Rs.10 lakhs (Rs. 5 lakhs for NE States) except in certain specified cases where the taxable person is liable to pay GST even though he has not crossed the threshold limit. The CGST / SGST is payable on all intra-State supply of goods and/or services and IGST is payable on all inter-State supply of goods and/or services. Intra-State supply of goods and/or services refers to those transactions where the location of the supplier and the place of supply are in the same State. Inter State supply of goods and/or services refers to those transactions where the location of the supplier and the place of supply are in different States. The CGST /SGST and IGST are payable at the rates specified in the Schedules to the respective Acts.

10. The draft IGST law contains 33 sections divided into 11 Chapters. The draft, inter alia, sets out the rules for determination of the place of supply of goods. Where the supply involves movement of goods, the place of supply shall be the location of goods at the time at which the movement of goods terminates for delivery to the recipient . Where the supply does not involve movement of goods, the place of supply shall be the location of suc goods at the time of delivery to the recipient. In the case of goods assembled or installed at site, the place of supply shall be the place of such installation or assembly. Finally, where the goods are supplied on board a conveyance, the place of supply shall be the location at which such goods are taken on board.

The draft also sets out in detail the rules for determination of the place of supply of services. As per the draft, the place of supply of services (other than some specified services) made to a registered person shall be the location of such person and that made to an unregistered person shall be the location of such person where the
address on record exists. In other cases, i.e. where the address on record is not available, the place of supply shall be the location of the supplier of service. The draft law has also set out rules for determining the place of supply of certain services like immovable property, restaurant and catering, training and performance appraisal, admission  to a cultural, scientific or educational event, organization of a fair, exhibition etc., transportation of goods and passengers, telecommunications, banking, insurance, advertisement and financial services.

The draft IGST law deals with the aspect of cross utilization of IGST credit. It has been provided that on utilization of IGST credit for payment of CGST, the Central Government shall transfer an amount equal to the credit so utilized from the IGST account to CGST account. Likewise, on utilization of IGST credit for payment of SGST, the Central Government shall transfer an amount equal to the credit so utilized from the IGST account to the SGST account of the respective State Government. The draft provides for apportionment of tax collected under this Act and settlement of funds. It has also been provided that certain provisions of the CGST Act such as registration, valuation, time of supply, exemption, ITC, audit, assessment, demands, adjudication, refund, search,  seizure and arrest, prosecution and appeals shall apply mutatis mutandis to this Act.

The Model Law has been drafted keeping in view certain policy objectives, such as, clarity in tax laws, tax laws which are easy to administer, tax laws which are nonadversarial and tax payer-friendly, and which improves “ease of doing business”. An attempt has been made to provide a fair dispute resolution mechanism for tax payers under GST. The highlights of the Model Law are as under:

Minimal interface

The physical interface between the tax payer and the tax authorities would be minimal under GST. Certain important provisions in this regard are illustrated as under:

(i) Registration will be granted on line and shall be deemed to have been granted if no deficiency is communicated to the applicant within 3 common working days by either of the tax administration.

(ii) Taxable person shall himself assess the taxes payable (self-assessment) and credit it to the account of the Government. The return filed by the tax payer would be treated as self-assessed.

(iii) Payment of tax shall be made electronically through internet banking. Smaller taxpayers shall be allowed to use the systems generated challan and pay tax over the bank counter.

(iv) The tax payer shall furnish the details of outward supplies electronically without any physical interface with the tax authorities. Inward supply details would be autodrafted from the supply details filed by the corresponding suppliers.

(v) Tax payers shall file, electronically, monthly returns of outward and inward supplies, ITC availed, tax payable, tax paid and other prescribed particulars. Composition tax payers shall file, electronically, quarterly returns. Omission/incorrect particulars can be self-rectified before the last date of filing of return for the month of September of the following year or the actual date of filing of annual return, whichever is earlier.

(vi) Matching, reversal and reclaim of input tax credit shall be done electronically on the GSTN portal without any tax payer contact. [This would prevent, inter alia, input tax credit being taken on the basis of fake invoices or twice on the same invoice.]

(vii) Tax payers shall be allowed to keep and maintain accounts and other records in electronic form.

 

Input tax credit

 

The provisions of input tax credit have been prone to litigation. The Model GST law provides an elaborate mechanism for availment and utilization of ITC and seeks to impart clarity with a view to minimizing disputes. The important provisions of the law are as under:

(i) Tax payer is allowed to take credit of taxes paid on inputs (input tax credit), as selfassessed, in his return.

(ii) Taxpayer can take credit of taxes paid on all goods and services, other than a few in the negative list, and utilize the same for payment of output tax.

(iii) Credit of taxes paid on inputs can be taken where the inputs are used for business purposes or for making taxable supplies.

(iv) Full input tax credit shall be allowed on capital goods on its receipt as against the current Central Government and many State Government practice of staggering the credit in two or three equal instalments.

(v) Unutilized input tax credit can be carried forward.

(vi) The facility of distribution of input tax credit for services amongst group companies has been provided for through the mechanism of Input Service Distributor (ISD).

 

Refund

Refund provisions have been simplified and made more taxpayer friendly. Some of the important provisions of the Model GST Law are as under:

(i) Time limit for claiming refund has been increased from one year to two years.

(ii) Refund claim along with documentary evidence is to be filed online without any physical interface and the tax refund will be directly credited to the nominated bank account of the applicant. Besides, refund of inadvertent /Excesspayment can be claimed through return also.

(iii) Refund shall be granted within 90 days from the date of receipt of complete application. Interest is payable if refund is not sanctioned within the stipulated period of 90 days.

(iv) If the refund claim is less than Rs. 5 lakhs, there is no need for the claimant to furnish any documentary evidence that he has not passed on the incidence of tax to any other person. Only a self-certification to this effect would suffice.

(v) Refund of input tax credit shall be allowed in case of exports or where the credit accumulation is on account of inverted duty structure (i.e. where the tax rate on output is higher than that on inputs).

(vi) In case of refund claim on account of exports, 80% of the claim shall be paid immediately on a provisional basis without verification of documentary evidence.

 

Demands

 

Keeping in view complaints of long delays in issuance of adjudication orders, a new concept of sunset clause for tax disputes has been introduced. The important provisions in this regard are as under:

(i) Adjudication order shall be issued within 3 years of filing of annual return in normal cases.

(ii) The time limit is 5 years (from filing of annual return) in fraud/suppression cases.

(iii) There are no separate time lines for issue of SCN and adjudication order, as at present under Central Laws.

(iv) Provisions for settlement of cases have been made available to taxpayers at every stage, right from audit/investigation to the stage of passing of adjudication order and even thereafter.

(v) Penalty is Nil or minimal if the tax short paid / non-paid is deposited along with interest at the stage of audit/investigation.

(vi) The officer shall in his order set out the relevant facts and the basis of his decision.

(vii) The amount of tax, interest and penalty demanded in the order shall not be in excess of the amount specified in the notice.

(viii) No demand shall be confirmed on grounds other than the grounds specified in the notice.

 

Audit

 

The manner of conducting audit has been a sore point with the taxpayers. In the Model GST Law, certain disciplines have been brought in, as enumerated below, to streamline the process of audit.

(i) It is not necessary that in all cases the tax authorities would have to visit the place of business of the taxpayer for conducting audit. The audit can even be conducted at the office of the tax authorities.

(ii) Tax payer shall be informed sufficiently in advance, not less than 15 working days, prior to the conduct of audit.

(iii) The audit shall be carried out in a transparent manner and completed generally within a period of 3 months from the date of commencement of audit.

(iv) On conclusion of audit, the proper officer shall without delay notify the taxable person of the findings, the taxable person’s rights and obligations and reasons for the findings.

Penalty disciplines

Another area of dissatisfaction of the 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 disciplines, as mentioned below, have been incorporated in the Model GST Law.

(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.

(iii) Penalty shall be commensurate with the degree and severity of the breach.

(iv) No penalty shall be imposed without issue of Show Cause Notice (SCN) and without giving personal hearing to the concerned person.

(v) Reasoning is to be given in the order, specifying the nature of the breach and the applicable laws or procedure.

(vi) In case of voluntary disclosure of breach, the tax authorities may consider this fact as a potential mitigating factor when establishing a penalty for that person.

 

Alternate dispute resolution mechanism

 

The various modes of dispute resolution like advance ruling and Settlement Commission have been continued under GST law. The salient features are as under:

(i) Advance ruling can be sought in respect of more subjects than allowed at present. The subjects are: classification of goods/or services, method of valuation, rate of tax, admissibility of input tax credit, liability to pay tax, liability to take registration and whether a particular transaction amounts to a supply under GST law.

(ii) Advance ruling can be sought not only for new activities but also for existing activities.

(iii) The facility of appeal, which is not there under the Central law, has been provided in the Model GST Law. The applicants or the Department, if aggrieved by the advance ruling, would henceforth get the opportunity to file an appeal before the Appellate Authority for revision of the ruling.

(iv) The provision of Settlement Commission has been included in the IGST Law.
Transitional provisions

 

In the Model GST law, elaborate transitional provisions have been made to enable smooth migration of tax payers from the present regime to GST. The important provisions in this regard are:

(i) The existing taxpayers shall be issued a certificate of registration valid for 6 months. Upon furnishing of prescribed information, registration shall be granted on a final basis.

(ii) The amount of CENVAT credit / VAT carried forward in a return shall be allowed tobe taken as input tax credit subject to certain conditions. Un-availed CENVAT credit on capital goods, not carried forward in a return, shall also be allowed as ITC subject to certain conditions.

(iii) Credit of eligible duties and taxes in respect of inputs held in stock shall be allowed to a registered taxable person subject to fulfilment of certain conditions.

(iv) Credit of eligible duties and taxes in respect of inputs held in stock shall be allowed to a taxable person upon switching over from the composition scheme to the normal scheme.

(v) No tax is payable on the goods removed/despatched earlier but returned to the place of business within a period of 6 months after the introduction of GST.

(vi) Likewise, no tax shall be payable on the inputs, semi-finished goods and finished goods removed/despatched earlier for job work or for carrying out certain processes and returned to the place of business within a period of 6 months after the introduction of GST.

(vii) Pending refund claims shall be disposed of in accordance with the provisions of earlier law and the amount of refund shall be paid to the claimant in cash, subject to certain conditions.

(viii) Pending claim of CENVAT credit /input tax credit shall be disposed of in accordance with the provisions of earlier law and the amount of credit shall be paid to the claimant in cash, subject to certain conditions.

(ix) No tax shall be payable on the supply of goods and /or services made before the introduction of GST where a part of consideration for the said supply is received on or after the introduction of GST, but the full duty or tax payable on such supply has already been paid under the earlier law.

(x) No tax shall be payable on the goods sent on approval basis before the introduction of GST but which are rejected and returned to the supplier within 6 months from the introduction of GST.

 

Other provisions of Model GST Law

 

The Model Law contains several other provisions which are taxpayer friendly and
are meant for facilitating trade and industry. The provisions worth mentioning here are:

(i) Valuation of goods shall be done on the basis of transaction value i.e. the invoice price, which is the current practice under the Central Excise and Customs Laws.

(ii) Taxpayers are allowed to issue supplementary or revised invoice in respect of a supply made earlier.

(iii) The facility of provisional assessment to tax payers in cases where he is unable to determine the value or rate of tax has been allowed.

(iv) Taxpayers are allowed to file the details of inward and outward supplies, and the various returns through Tax Return Preparers registered with tax administration.

(v) Tax payments for all months shall be made in the succeeding month. Tax dues of March are thus to be paid in April and not March, as at present in the Central Government. Composition taxpayers filing quarterly returns and thereby paying tax on a quarterly basis will be required to pay tax in the month succeeding the quarter-end.

(vi) New modes of payment of tax are being introduced, viz. through credit and debit cards, National Electronic Fund Transfer (NEFT) and Real Time Gross Settlement (RTGS).

(vii) The facility of job work has been continued under the GST regime.

(viii) E-Commerce companies are required to collect tax at source in relation to any supplies made through their online platforms, under market place and fulfilment model, at the rate notified by the Government.

(ix) The Commissioner has been empowered to grant extension of time for payment of certain tax dues or allow payment of such amount in monthly instalments to the tax payer.

(x) Exports shall be treated as zero rated supply. No tax is payable on exports but credit of the input tax related to that supply shall be admissible and the same can be claimed as refund by them.

(xi) Provision has been made for the Government to provide remission of tax on supplies which are found to be deficient in quantity due to any natural causes.

(xii) A separate schedule (schedule II) has been provided to clarify certain types of supply as either supply of goods or of services. For example, supply of intangibles, works contract supplies, lease transactions and restaurant supplies are categorised as supply of services. Hopefully, this would put an end to the prevailing confusion on their tax treatment.

 

(b) GST Rules and Regulations

Preparation of GST Rules and Regulations is another major area of work which needs to be completed well in advance before the implementation of GST. Rules and Regulations are to be jointly drafted by the officials of the Central and State Governments. The CBEC has set up a Working Group for this purpose.

(c) IT preparedness

Putting in place a robust IT network is an absolute must for implementation of GST. A Special Purpose Vehicle called the GSTN has been set up to cater to the needs of GST. The GSTN shall provide a shared IT infrastructure and services to Central and State Governments, tax payers and other stakeholders for implementation of GST. The functions of the GSTN would, inter alia, include: (i) facilitating registration; (ii) forwarding the returns to Central and State authorities; (iii) computation and settlement of IGST; (iv) matching of tax payment details with banking network; (v) providing various MIS reports to the Central and the State Governments based on the tax payer return information; (vi) providing analysis of tax payers’ profile; and (vii) running the matching engine for matching, reversal and reclaim of input tax credit.

The GSTN is developing a common GST portal and applications for registration, payment, return and MIS/reports. The GSTN would also be integrating the common GST portal with the existing tax administration IT systems and would be building interfaces for tax payers. Further, the GSTN is developing back-end modules like assessment, audit, refund, appeal etc. for 19 States and UTs (Model II States). The CBEC and Model I States (15 States) are themselves developing their GST back-end systems. Integration of GST front-end system with back-end systems will have to be completed and tested well in advance for making the transition smooth.

(d) Training and Workshops

A detailed calendar has since been drawn up for training the Central and State Government officers and staff on GST law, regulations and procedure. Some 10 officers from the Central Government and 15 officers from the State Governments have been identified as Source Trainers who would be training a pool of some 300 Master Trainers of the Central Government/State Governments who, in turn, would be training some 1600 Trainers drawn from the Central Government and State Governments. The Trainers would then train some 70,000 Central / State Government tax officials at the field level. Presentations and training materials are being prepared with the help of ICAI for this purpose. Training courses would be held at the various locations of the country.

14.1 Training of trade and industry on GST law and procedure is equally important. It has been decided to hold seminars/workshops in 50 cities spread across the country to prepare and educate the trade and industry on GST law, rules, regulations and procedure. Sectoral seminars/workshops for specific sectors such as IT, E commerce , telecommunications and financial services are proposed to be organised at Bangalore and Mumbai. Further, the GSTN would be imparting training to the Master Trainers on GST IT systems who would, in turn, be imparting training to Central/State Government officials and trade & industry. Creating consumer awareness about the benefits of GST is also part of the work plan which needs to be completed before the introduction of GST.