On 26th November 2016, the Government had put revised draft CGST/SGST Act, IGST Act (referred hereinafter as earlier Draft GST law) in the public domain. On 27th March 2017, the Hon'ble Finance Minister, Shri Arun Jaitley tabled four legislations, i.e., Central GST (CGST), Union Territory GST (UTGST), Integrated GST (IGST) and Compensation Law in the Lok Sabha. These bills were introduced as Money Bills to ensure that they do not face any hurdles in the Rajya Sabha.
In this article, are analysed GST Bills and the significant changes proposed therein highlighted vis-à-vis earlier Draft GST law.
GST payable on supplies
2. In GST regime, all 'supplies' such as sale, transfer, barter, lease, import of services, etc., of goods and/ or services made for a consideration will attract CGST (to be levied by the Centre) and the SGST (to be levied by the States). As GST will be applicable on 'supply' the erstwhile taxable events, such as 'manufacture', 'sale', 'provision of services', etc., will lose their relevance.
Further, certain supplies specified in Schedule I of the CGST law, even if made without consideration, such as permanent transfer of business assets on which credit is availed, transaction with related entities, transactions with agent, etc., will attract GST.
(a) Now, in Schedule I of CGST law it is provided that gifts not exceeding INR 50,000/- in value in a financial year by an employer to an employee shall not be treated as supply of goods or services or both. This provision could also open pandoras box as free canteen facility, travel facility for employees may attract GST (as they may not qualify as 'gifts').
(b) Schedule IV (listing exemption to certain services provided by the Government, such as issuance of passport, driving license, etc), which was available in the earlier Draft GST law, is now omitted.
GST payable by recipients
3. Typically, GST liability is to be discharged by supplier of goods or service or both. However, in certain specified cases the liability to pay tax is cast on the recipient of supply instead of the supplier, known as Reverse Charge Mechanism (RCM). GST law provides for RCM on notified categories of supply of goods or services or both.
3.1 Now, GST law provides that in respect of the supply by un-registered supplier, to a registered person, GST shall be paid by recipient under RCM.
GST payable as per time of supply
4. The liability to pay CGST / SGST will arise at the time of supply as determined for goods and services. In this regard, separate provisions prescribe as to what will be time of supply for goods and services. The provisions contemplate payment of GST on supply of goods or services at the earliest of date of issuance of invoice or prescribed last day by which invoice is required to be issued or date of receipt of payment.
Given that there could be multiple parameters in determining 'time' of supply, maintaining reconciliation between revenue as per financials and as per GST could be a major challenge to meet for businesses.
|Things You Must Know About GST Bill|
4.1 Now, GST law provides that time of supply to the extent it relates to an addition in the value of supply by way of interest, late fee or penalty for delayed payment of any consideration shall be the date on which the supplier receives such additional value.
Determining the Place of Supply could be the key
5. GST law provides that an intra-State supply of goods or services or both will attract CGST and SGST/ UTGST (in Andaman and Nicobar Islands, Lakshadweep, Dadra and Nagar Haveli, Daman and Diu, Chandigarh and other territory). An inter-State supply will attract IGST.
Thus, it would be crucial to determine whether a transaction is an 'intra-State' or 'Inter-State', as taxes will be applicable accordingly. In this regard, the IGST law provides separate provisions which will help an assessee to determine the place of supply for goods and services. Typically, for 'goods' the place of supply would be location where the good are delivered, whereas for 'services' the place of supply would be location of the recipient.
However, there are multiple scenarios such as supply of services in relation to immovable property, services to and by SEZ, etc., wherein this generic principle will not be applicable and specific provisions will determine the place of supply. Thus, the business will have to scroll through all the place of supply provisions before determining the place of supply.
Model GST law casts the onus of determining whether a transaction is an 'intra-State' or 'inter-State' on the assessee. In this regard, the GST law provides that if a taxpayer wrongly determines an intra-State transaction as inter-State transaction and, in-turn, pays IGST, then the taxpayer will be refunded IGST paid but will have to say applicable GST.
5.1 Now, GST law specifically provides that interest will not be payable on delayed payment of, say CGST and SGST if taxpayer had wrongly paid IGST.
Valuation of GST
6. GST would be payable on the 'transaction value'. Transaction value is the price actually paid or payable for the said supply of goods and/or services between un-related parties. The transaction value is also said to include all expenses in relation to sale, such as packing, commission, etc.
Even subsidies linked to supply, excluding Government subsidies, will be includable. However, discounts/ incentives given before or at the time of supply will be permissible as deductions from transaction value. As regards discounts given after supply is made, the same will be permissible as deductions subject to fulfilment of prescribed conditions.
6.1 GST law contains empowering provision for Valuation Rules and, thus, GST Valuation Rules could be prescribed later on.
Input tax credit in GST
7. Current CENVAT credit regime disallows CENVAT credit on various services, such as motor vehicle related services, catering services, employee insurance, construction of civil structure, etc. Similarly, State VAT laws restrict input tax credit in respect of construction, motor vehicle, etc. This denial of credit leads to un-necessary cost burden on assessee.
It was expected that in GST regime, seamless credit will be allowed to business houses without any denial or any restrictions except goods / services which are availed for personal use than official use (something similar to Unite Kingdom VAT law).
Surprisingly, inter-alia, input tax credit cannot be claimed on catering services, employee insurance, construction of civil structure. Further, credit is proposed to be denied on goods and/or services used for personal consumption. Also, input tax credit shall not be available on goods lost, stolen, destroyed, written off or disposed of by way of gift or free samples. This continuation of denial will lead to substantial tax cascading.
(a) Credit will be available on rent-a-cab, life insurance and health insurance, if the Government notifies these services as obligatory for an employer to provide to its employees under any law
(b) Also, credit on food and beverages, outdoor catering, beauty treatment, health services, cosmetic and plastic surgery will be available if used as inward supply for making an outward taxable supply of the same category or as an element of a taxable composite or mixed supply. Similarly, rent-a-cab, life insurance and health insurance will be available, if used as inward supply for making an outward taxable supply of the same category or as an element of a taxable composite or mixed supply.
(c) In the earlier Draft GST law, specific provision allowed availment of credit on pipelines and telecom towers. However, this provision has been omitted in the latest GST Bill
(d) Now, for claiming the input tax credit the buyer has to ensure that he pays to the supplier within 180 days from date of invoice. If payment to vendor is not made within 180 days then the input tax credit will be reversed and availed again on payment to vendor.
(e) For banking company or a financial institution including a NBFC, restriction of 50% on availment of credit, shall not apply to tax paid on supplies made by one registered person to another registered person having the same PAN.
There would be 35 GST laws in India
8. In GST regime, there will be one CGST law, one IGST law, one UTGST law, one Compensation law, and thirty one SGST laws for each of the States including two Union Territories with power to legislate.
8.1 It is pertinent to note here that the earlier Draft CGST law and IGST law, were applicable throughout India. However, CGST and IGST do not apply to Jammu and Kashmir (J&K) and, thus, in days to come, J & K taxpayers will have to closely watch the developments in this regard.
Rate of GST is not yet specified in the GST law
9. The rate of GST is not specified in GST law, though the maximum ceiling is prescribed to be 20% for CGST, SGST/UTGST and 40% for IGST. Various News reports suggest that the rates in GST regime will be 0%, 5%, 12%, 18% and 28% plus Compensation Cess.
(a) GST law prescribes a special rate for traders (1%), manufacturers (2%) and restaurants/dhabas (5%), provided their turnover is less than INR 50 lacs. Now, this composition scheme can be opted for by the taxpayers (requirement of permission dispensed with).
(b) Compensation Cess is proposed to be levied on aerated water (upto 15%), specified passenger cars (upto 15%), pan masalas (upto 135%), tobaccos (upto INR 4,170/- per thousand sticks and 290%), coal, etc (upto INR 400 per tonne).
10. India is planning to introduce anti-profiteering measures to ensure that the benefits arising out of GST regime should be passed on to the consumers.
10.1 It may be noted that the revised Model GST law only empowers the Government to constitute the Authority but does not prescribe any method to determine the benefit which the supplier is liable to pass on. Thus, in days to come anti-profiteering guidelines could be prescribed.
Key procedural provisions and Definitions
11. Taxpayer is required to file return of his outward supplies in GSTR-1 format. Now, it is provided that the registered person shall not be allowed to furnish the details of outward supplies during the period from 11thto 15th day of the month succeeding the tax period. Taxpayer is required to file return of his inward supplies in GSTR-2 format. Now, it is provided that the taxpayer shall either accept or reject the details so communicated, on or before the 17th day, but not before the 15th day, of the month succeeding the tax period.
A registered person engaged in taxable activity is required to issue an invoice. However, GST law provides that an invoice may not be issued a as tax invoice if the value of the goods or services or both supplied is less than INR 200, subject to prescribed conditions.
Most of the definitions as provided under the earlier Draft GST law have been retained except some changes in the definition of works contract, business, etc.
(a) Works contract definitions will be relevant only for immovable property and a works contract, say movable property could be governed by definition of composite supply.
(b) In the earlier Draft GST law 'actionable claims' were covered under the definition of 'goods'. Now, GST law specifically provides that actionable claims (other than lottery, betting, gambling) land will not be attract GST.
(c) Now, GST law specifically provides that land and completed buildings will not attract GST
12. In days to come the State legislative assemblies are expected to table respective SGST Acts in their respective assemblies. Also, most of the Rules and regulations are expected to be made available in days to come.
Now, it's the turn of the trade and industry to gear up for GST as very few days are left for introduction of the GST in India.