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    Mar 29, 2017

    Doing Business will not Easy in GST

    Since all four Bills relating to GST have been introduced in Lok Sabha on 27-3-2017, there are very good chance that GST will be effective from 1-7-2017.

    GST as is coming seems to be like a movie. Often, the trailer of movie is good but picture is not so good. Something similar is happening with GST. The idea of GST was initiated to create a national market and avoid cascading effect of taxes.

    However, the final shape of GST that is coming on 1-7-2017 is not so good. In fact, some of GST provisions are 'terrors'. Most certainly, the compliance costs are heavy and there is absolutely no 'ease of doing business'.

    Some critical and obnoxious provisions are discussed here.

    Avoidance of dual control
    A taxable person should be under one authority - either Centre or State. Thus, principle of avoiding dual control is laudable.

    However, how bifurcation of taxable persons will be made between State and Centre is not clear.

    It seems such bifurcation will be done on random basis. If so, this will lead to chaos. In case of taxable persons having multi-state businesses, they may be assessed by State Government authorities in some States and by Central Government authorities in some other States. This will lead to different authorities taking different view on same transaction. Ideally, taxable persons having multi-state businesses (including telecom, insurance, banking) and those predominantly in export and import field should be under control of Central Government. Industries and businesses restricted to one State should be under control of State Government. This will ensure avoidance of conflicting views by tax authorities on same issue.

    This will create problems for consultants also. Some of their clients may be under State Government Control while others may be under Central Government control. Thus, they will have to deal with two authorities or have separate partners dealing with different authorities.

    System is master - not human being

    In GST, system is master. Law will be what system decides. There is not likely to be much human touch in many aspects of GST.

    This is particularly in case of input tax credit, payment of taxes and returns where human will be helpless against system. Examples - mismatches, adjustment of payments on FIFO basis.

    Huge amount of data uploading and data crunching is required. If system fails, whole mechanism of input tax credit and adjustment of taxes fails.

    Many taxable persons do not have capability to deal with the IT challenges under GST. Even infrastructure required for compliance is insufficient outside major cities and towns.

    CGST/SGST paid when IGST was payable and vice versa

    Interpretation of provisions of 'place of supply' and 'fixed establishment' are critical in determining whether IGST is payable or SGST/CGST are payable.

    A taxable person who has paid CGST/SGST/UTGST (in SGST/UTGST Act) on a transaction considered by him to be an intra-state supply, but which is subsequently held to be an inter-state supply, shall be granted refund of CGST /SGST/UTGST (in SGST/UTGST Act). This means that he will have to pay IGST and then claim refund of SGST/UTGST/CGST paid.

    There is similar mutatis mutandis provision in IGST Law also.

    Really, there should be adjustment between State and Centre, instead of asking taxable person to pay ISGT (or CGST and UTGST/SGST) and then claim refund of SGST/UTGST and CGST paid (or IGST paid, as applicable). Even assuming there are some difficulties in adjusting SGST with IGST and vice versa, there should be no difficulty in adjusting CGST and IGST as both are paid to Central Government only.

    If the receiver had availed input tax credit, refund will not be admissible. Thus, there will be double whammy to supplier.
    Doing Business will not Easy in GST

    Conflict of interest between Centre and State

    State Government/Union Territory Authorities from where goods or services are supplied will try to interpret place of supply rules in favour of provision of payment of SGST/UTGST and CGST in their State. On the other hand, State Government/Union Territory authorities where goods and services are received will try to interpret the provision such that either IGST should have been paid or SGST/UTGST of their State should have been paid.

    This will create conflicts. Only solace is that Appellate Tribunal is common for SGST, UTGST and CGST.

    Valuation provisions copied from excise and service tax law

    Some concepts of Valuation provisions as contained in section 15 of CGST Act have been copied from present service tax and excise law. Concepts in these provisions like 'related person' and 'price is sole consideration' are not in tune with concept of GST at all. Such valuation provisions will increase litigation and are really unworkable in GST regime where transaction value is the basic criteria. Artificial additions in transaction value will result in disallowances of legitimate input tax credit, as that input tax has been paid by some other person.

    The term 'price is sole consideration' will bring issues in valuation like reimbursement of expenses, drawings, patterns, dies and tools supplied by recipient, free material supplied by recipient and many others.

    Really provision relating to related buyer should be retained only when the related buyer is ultimate consumer and is not eligible for input tax credit.

    'Value' for GST would include interest or late fee or penalty for delayed payment of any consideration for any supply. This would create havoc.

    Artificial disallowances of input tax credit

    Provision in section 17(5) of CGST Act for disallowing input tax credit on rent-a-cab service makes no sense, as in many cases, this service is used for legitimate business purposes. Some services like food and beverages and beauty treatment are legitimate business expenses for some kinds of businesses. In those cases, these should be allowable.

    Input tax credit of legitimate expenditure like telecom towers and pipelines outside the factory is being denied.

    Services relating to construction of office building or factory building are not eligible. Does it mean that we should work in open and building is waste of money?

    Payment of GST on advances received

    Receiving advance from customers is common. However, as per section 12(3) and 13(2) of CGST, tax will be payable when advance is received, even if supply of goods and services is to be made at a later stage. This will throw the business out of gear and increase compliance costs. Input Tax Credit will not be available to recipient when GST is paid by supplier on advance received.

    Interestingly, if the amount is termed as 'adjustable deposit' in a separate account, GST is not payable, though Company Law issues will arise.

    Reversal of input tax credit if payment not made to supplier within 180 days

    As per second proviso to section 16(2) of CGST Act, If payment of bill and tax thereon is not made to supplier within 180 days, input tax credit is required to be reversed. The purpose seems to be to avoid bogus invoices. However, since tax has been received by Government, there is no loss to Government revenue.

    It is not clear why Government is acting as recovery agent for supplier, when the tax part has been received by Government.

    Some deductions from invoices are common in business. In construction industry, retention of 5%/10% amount for one or two years is common. In such cases, reversal of ITC will be required, increasing compliance costs substantially.

    GST on fringe benefits to employees

    Employer and employee have been defined as 'related persons', as per explanation (a)(iii) to section 15 of CGST Act. As per clause 2 of Schedule I of CGST Act, supply of goods or services or both between related persons will be 'supply' even if there is no consideration.

    Thus, fringe benefits provided to employees will be subject to GST. It will be similar to fringe benefit tax, which will lead to tremendous litigation.

    Gifts upto Rs 50,000 to employees may be exempted. However, reversal of input tax credit will be required.

    Post supply discounts and price reductions after supply not eligible for deduction from value

    Giving trade discounts and price reductions during negotiations after supply of goods and services is very common in business. However, if such post supply discounts were not anticipated at the time of supply, it is not allowed to be deducted from value, as per section 15(3)(b) of CGST Act. This provision completely ignores business reality. as post supply negotiations and price reductions are common in business.

    Interestingly, there is provision of credit note in section 43 of CGST Act which allows adjustment of input tax credit on issue of credit note.

    Intimation for sending goods for job work

    Section 143(1) of CGST Act requires that inputs or capital goods can be sent to a job worker under intimation.

    Job work is very common in industry. It is impractical to give intimation to department in every case. This is against concept of 'ease of doing business'. Let us hope that this impractical provision is dropped. In any case, 'intimation' by email should be sufficient. Otherwise, compliance costs and harassment will increase.

    Reverse charge if supply received from unregistered person

    There is provision in section 9(4) of CGST Act for payment of GST under reverse charge if procurement is from unregistered person. This will create tremendous accounting and record keeping challenges as such reverse charge would apply even to small purchases and petty services. It will result in increase in compliance costs and 'unease' of doing business.

    Liability of GST on commission agent earning foreign exchange for India

    As per provision of section 13(8)(b) of IGST Act. a commission agent in India providing service to Principal outside India and earning foreign exchange for India is made liable to pay GST, while Principal in India paying commission in foreign exchange to foreign commission agent is not required to pay GST. This is indeed an ironical situation.

    Why continuation of concept of 'works contract'?

    Presently, 'works contract' is one major source of harassment and litigation. This concept has been retained, possibly to ensure that advocates and consultants have sufficient business, and tax authorities have sufficient provisions for harassment. There is no reason to continue with concept of 'works contract'. Luckily it is now limited to immovable property only.

    No centralised registration - registration in each State

    Taxable persons doing business in different States would require separate registration in each State, adding considerably to compliance costs.

    Tendency to reduce inventory on 1-7-2017

    The Cenvat credit or Vat credit available with taxable persons as on 1-7-2017 will be transferred under GST. Thus, manufacturers and traders buying from manufacturers are not at a loss. However, taxable persons who are second or subsequent dealer sand traders do not have any excise invoice for taking input tax credit.

    There will be attempt by such dealers to reduce inventory as on 1-7-2017 to minimise problems of carry forward of input tax credit of excise duty, CVD and State Vat paid on stock lying with him on 1-7-2017.If this happens all over India, we can imagine its cumulative effect. There will be lull in economy at least during transition period.

    Conclusion

    There is not likely to be 'ease of doing business' in GST. On the other hand, some provisions will increase compliance costs and will be easy source of harassment to tax authorities.

    Of course, overall, the proposed GST is a vast improvement over present tax structure.

    1 comment:

    1. As per Clause 1 of Schedule III, services by an employee to the employer in the course of or in relation to his employment are not to be treated as supply of services. The taxability of fringe benefits to employees given above needs to be analyzed one more time.

      ReplyDelete

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