Courtesy: CMA Dipak Joshi
The much awaited constitutional bill presented by Union Finance Minister on 19th November 2014. This will facilitate easy implementation of GST Law. The idea about GST was first time initiated by former Union Finance Minister P. Chidambaram. Under UPA Regime by introducing 115th Constitutional Amendment Bill 2011. But he failed to make consensus between Centre and State. Since its first day, the BJP led NDA government trying to push the biggest tax reform since 1947. In the Union budget also Union Finance Minister repeated the importance of GST.
In the past, to amend constitution, 115th Constitutional Bill was introduced by UPA government but the same has been lapsed due to dissolution of 15th Loksabha, requiring the new NDA government to come up with fresh Bill. After the lots of discussion with States Finance Minister, Union finance Minister cracked the deadlock between Center and State. This bill will enable Centre and State Government (Including Union Territory) to draft the CGST and SGST Law respectively. The clause by clause detailed analysis of bill is as under
Insertion of New Article 246A :- The Article 246 gives power to Union and State government to make the law relating to matter covered under List I (Union List), List II (State List) and List III (concurrent List). The Article 246A(1) gives right to parliament and the legislator of every state can make the law in respect of goods and service tax to be imposed by central or state government. This amendment would subsume the taxes like Excise duty, Service tax, Central Sales tax at Central level and VAT, Entry tax, Entertainment tax etc. at State level.
The Article no 246A(2) covers the provision of Interstate supply of goods or services or both ,in such circumstances only parliament ( i.e. Central Government) can make the Law. However the provision of article 246A, in case of Petroleum crude, high speed, petrol, natural gas and aviation turbine fuel shall take effect from the date recommended by GST council as constituted under Article 279A.
Amendment of Article 248(1) (residuary Power of legislation):-Under Article 248(1) Parliament has exclusive power in to make any law in respect of any item not covered under State List and Concurrent List subject to provision Article 246A
Amendment of Article 249 (1) (Power of Parliament to legislate with respect to a matter in the State List in the national interest):- Parliament under article 249(1) can make the law in respect of any item specified in the state list in the national interest, if the Council of States has declared by resolution and supported by 2/3rd of member present and vote. Now this also includes goods and service tax under article 246A i.e. Parliament of India can make the GST law for the whole or any part of India subject to approval 2/3rd members of each state.
Amendment of Article 250(1) (Proclamation of Emergency) :- In the event of announcement of emergency, Parliament of India has power to make the laws in respect of any item covered under state list for the whole India or part of the India under article 250(1). Goods and service tax under article 246A i.e. Parliament of India can make the GST law in case of emergency.
Amendment of Article 268 (1) (Duties levied by the union but collected by the States): – Article 268 (1) provides the provision of levy of stamp duty and excise duty on medicinal and toilet preparation by union government and collection by state (In case of State) or by union (In case of union territory). Now, the duties of excise on medicinal and toilet preparation has been omitted and same is been amalgamated in GST.
Amendment of Article 268A (Service tax levied by union government and collected and appropriated by Union & States):- Article 268A provides power to government of India to levy the service tax and collected and apportioned by government of India and State. Now, this article has been omitted.
Amendment of Article 269 and Insertion of New Article 269A (Inter State Sale and Purchase) :-Article 269 (1) facilities the levy and collection of tax on sale of goods or consignment of goods in the course of Interstate trade or Commerce. Now, the provision of this clause is subject to new article 269A. As per Article 269A Goods and Service tax shall be levied and collected by Government of India and apportioned between States in the manner as provided in the law by parliament on the recommendation of GST council.
Further, Parliament of India will formulate the law in respect of tax on interstate trade of goods and services. In addition to above import of goods or Services or both will also be equally treated as Supply of the goods and services in the course of Inter-State trade or Commerce. This will give power to central government to levy IGST on the Import transaction instead of CVD levied under existing Act.
Amendment of Article 270(1)(Levy and Distribution between union and state):- Article 270(1) provides the distribution of certain taxes between union and states as per clause (2) of Article 270. The Interstate GST has been kept outside from the provision of above article. Because the provision of distribution of revenue in case of Interstate GST is already incorporated under 269A. Hence the same is excluded from the purview of 270(1). However the revenue of GST other than Interstate GST will be distributed between Union and State according to Clause (2) of Article 270.
Amendment of Article 271 (Surcharge on taxes by union):- Parliament has exclusive right to charge the surcharge on any tax and such surcharge will form the part of consolidated fund. But the GST is exception to above article. In other word parliament cannot charge any tax by way of surcharge on GST.
Insertion of Article 279A (Constitution of Goods and Service tax Council):- With insertion of Article 279A, President of India has power to constitute Goods and Service tax Council (GST Council) within 60 days from the date of commencement of this act.
The Council shall consist following members
- Chairman :- The Union Finance Minister
- Member:- Union Minister of State Revenue/Finance
- Member:- Minister in charge of Finance/taxation of each State government
- The members for the committee shall decide Vice-Chairperson amongst them for such period as may decide.
- The council shall make the recommendation on rate of GST, surcharges, Exemptions, Model of GST law, Place of Supply rules, special rate of GST, Special Provision for North east states or any other matter as decided by the council.
- The Council will decide the date when GST be levied on petroleum crude, high speed, petrol, natural gas and aviation turbine fuel
- The quorum of meeting should be 1/2nd (50%) total members.
- Every decision of council shall be taken by majority of members consisting 3/4th (75%) of total weighted votes of members present and voting.
- The vote of Central government shall have weight of 1/3rd of total vote cast
- The vote of State governments together shall have weightage of 2/3rd of total vote cast
Amendment of Article 286 (Restriction on Imposition of tax) :- Article 286 restricts the state laws from imposition of any tax on sale or purchase of goods outside the state or in the course of the import of the goods into, or export of the goods out of, the territory of India. Now, Supply of goods or service or both will be covered by this clause. This clause will restrict the states from imposition of Interstate GST and same will be levied by union government under Article 269A as mentioned earlier.
Amendment of Article 366 (Definition): Article 366 covers various definitions. As per new clause 12A to Article 366 “Goods & Service tax” means any tax on supply of Goods or Services or both except taxes on supply of the alcoholic liquor for human consumption. The term service is also defined by inserting new clause 26A as, anything other than goods. The definition of service is much broader now as compared to the earlier one which is defined in finance act 1994.
Amendment of Article 368 (Power to parliament to amend the constitution):- Article 368 gives power to Parliament to amend any provision of constitution of India by introducing such change into the each house of parliament and get sanctioned from 2/3rd majority of the membership of the house present. It shall then present to president for his assent and then it becomes an act. However if the amendment is related with any matters of state, such amendment should be ratified legislature of states by 50% resolution before presentation of the same for presidents assent. Now Article 279A is also covered under provision of Article 368. It means any change in Article 279A shall also be ratified by state legislator beside the Sanction of each house of parliament and before the assent of President.
Amendment in Sixth Schedule (Powers to access and collect land revenue and to impose tax):- Under Para no 8 of sixth schedule the District council of an autonomous district shall have power to levy & collect taxes on professions, trades, calling, employment, animal, vehicle, boat, on entry of goods, for maintainace of school, dispensaries or road. Now additionally such District may levy taxes on Entertainment and Amusement.
Amendment in Seventh Schedule (Union List, State List and Concurrent List):- Seventh schedule to the constitution covers the basic Structure of Indian taxation. The rights of taxation are given to both i.e. Central government under List I (Popularly known as Union List) and to the State under List II (Popularly known as State List). Due to insertion of Article 246A it is imperative to amend union list and state list to make the proper arrangement of GST. The amendments are as follow
Amendment in Entry No 84, 92, 92C to Union List: As per Entry No 84 Duties of excise shall be levied on tobacco and other goods manufactured or produces in India except alcoholic liquor for human consumption, opium, Indian hemp and narcotics. Now the excise duty is been subsumed by Article no 246A. Hence now new Entry no 84 will cover Excise duty on petroleum crude, high speed, petrol, natural gas and aviation turbine fuel, tobacco and tobacco products. It means even after introduction of GST, Central Excise duty on above product shall remain in force till the time as GST council thinks fit.
Further Entry no 92 and 92 C covering tax on sale or purchase of newspaper and Service tax respectively have been omitted as already they are merged Into GST.
Amendment in Entry No 52, 54, 55 and 62 to State List:- Entry no 52 gives power to levy the entry tax. Now, the entry has been omitted. It means now local bodies can’t levy and collect the entry taxes like octrio, LBT etc.
Under Entry No 54 state government can collect tax on sale or purchase of goods other than newspaper.Now, the state government can only collect the taxes on sale of petroleum crude, high speed, petrol, natural gas and aviation turbine fuel and alcoholic liquor for human consumption. Further Now State government can’t levy the tax on advertisement under Entry No 55.
In addition to above now Panchayat, Municipalities, Regional or District council can levy and collect taxes on entrainment and amusement under entry 62.
Levy of addition 1% tax by States:- To protect the revenue loss of manufacturing state additional 1% tax shall be levied by state on sale or purchase in the course of interstate for the period of 2 years of such extended period as allowed by GST council. Entire revenue from such addition levy will kept by the state from where supply of goods take place. The Government of India may, where it considers necessary in the public interest, exempt such goods from the levy of tax
Compensation to States for Revenue Loss:- Parliament may by law and with the recommendation of GST council provide compensation to state on account of implementation of GST. The period of compensation is restricted upto 5 years.
Translation Provision:- If the provision of state Law is inconsistent with constitution after commencement of these act shall be valid till the amendment by competent legislator or authority or one from commencement of these act whichever is earlier.
Power of president to remove the difficulty:– If any difficulty arises after commencement of these act, the president may by order remove such difficulty. Provided that no such order is made after the expiry of three years from commencement of these act.
Every such order shall be soon laid before each house of parliament.
Conclusion: The 122nd Constitutional amendment bill is already passed by Loksabha by 2/3rd Majority. Most of the parties are already supported the bill in rajyasabha also. Now if the rajyasabha passes the bill by 2/3rd vote in upcoming Monsoon session followed by ratification by 50% states, can make GST law into the reality. The Government has already missed its pre decided deadline of 1st April 2016, let’s hope that GST law will be effective from 1st April 2017.