GST Constitution Amendment Bill- A Comparative Analysis

 1. Introduction

GST Constitution Amendment Bill was presented in the parliament for the purpose of introducing Goods and Service Tax. Currently GST is the hot topic in India. Bill contains the provisions that will be applicable under Goods and Service Tax. It is believed that it will simplify the indirect tax system in India as it contains certain features like cross utilization of credits etc. Bill also provides creation of Dispute Settlement Authority to settle disputes between states or between states and the Union with regard to GST. The Bill allows both Parliament and state legislatures to frame laws with respect to GST.  Parliament will have the exclusive power to levy GST on imports and inter-state trade. There are certain more provisions but people are not aware of these provisions.

Through this article, I will highlight the provisions contained in Bill so that you can have clearer image of GST. This article will cover all the provisions contained in the bill.

2. Bird’s Eye view

Article Present Proposed Change made Remarks
246A __________________ Notwithstanding anything contained in articles 246 and 254, Parliament and the Legislature of every State, have power to make laws with respect to goods and services tax imposed by the Union or by that State respectively:

Provided that Parliament has exclusive power to make laws with respect to goods and services tax where the supply of goods, or of services, or both takes place in the course of inter-State trade or commerce.

Explanation. — For the purpose of this article, “State’’ includes a Union territory with Legislature.

A new article is proposed to be inserted. This proposed article would confer power to both state as well as central government to make laws with respect to goods and services being transacted within the state.

 

However, only central government is authorized to deal with interstate transactions.

 

248(1) Parliament has exclusive power to make any law with respect to any matter not enumerated in the Concurrent List or State List. Subject to article 246A, Parliament has exclusive power to make any law with respect to any matter not enumerated in the Concurrent List or State List. For the word “Parliament”, the words, figures and letter “Subject to article 246A, Parliament” shall be substituted. This proposed article would reduce the scope of parliament as it contains the phrase ‘subject to Article 246A’. Now certain matters will be decided by state only though not mentioned in concurrent list.
249(1) Notwithstanding anything in the foregoing provisions of this Chapter, if the Council of States has declared by resolution supported by not less than two thirds of the members present and voting that it is necessary or expedient in the national interest that Parliament should make laws with respect to any matter enumerated in the State List specified in the resolution, it shall be lawful for Parliament to make laws for the whole or any part of the territory of India with respect to that matter while the resolution remains in force. Notwithstanding anything in the foregoing provisions of this Chapter, if the Council of States has declared by resolution supported by not less than two thirds of the members present and voting that it is necessary or expedient in the national interest that Parliament should make laws with respect to goods and services tax or enumerated in the State List specified in the resolution, it shall be lawful for Parliament to make laws for the whole or any part of the territory of India with respect to that matter while the resolution remains in force. After the words “with respect to”, the words “goods and services tax or’’ shall be inserted. This proposed article would confer additional power to parliament to make laws in respect of goods and service tax. However, such power can be exercised only if the council of state passes resolution supported by not less than two third of the members present and voting.

 

250(1) Notwithstanding anything in this Chapter, Parliament shall, while a Proclamation of Emergency is in operation, have power to make laws for the whole or any part of the territory of India with respect to any of the matters enumerated in the State List. Notwithstanding anything in this Chapter, Parliament shall, while a Proclamation of Emergency is in operation, have power to make laws for the whole or any part of the territory of India with respect to goods and services tax or of the matters enumerated in the State List. In article 250 of the Constitution, in clause (1), after the words “with respect to”, the words “goods and services tax or” shall be inserted. With insertion of this clause, parliament would be conferred power to make law in respect of goods and service tax when emergency is in operation.
268 Such stamp duties and such duties of excise on medicinal and toilet preparations as are mentioned in the Union List shall be levied by the Government of India but shall be collected. Such stamp as are mentioned in the Union List shall be levied by the Government of India but shall be collected. In article 268 of the Constitution, in clause (1), the words “and such duties of excise on medicinal and toilet preparations’’ shall be omitted. This article would discontinue the levy of duties on medical and toilet preparations.

 

268A (1)Taxes on services shall be levied by the Government of India and such tax shall be collected and appropriated by the Government of India and the States in the manner provided in clause (2).

(2) The proceeds in any financial year of any such tax levied in accordance with the provisions of clause (1) shall be—

(a) collected by the Government of India and the States;

(b) appropriated by the Government of India and the States, in accordance with such principles of collection and appropriation as may be formulated by Parliament by law.

Omitted. Article 268A of the Constitution [as inserted by section 2 of the Constitution (Eighty-eighth Amendment Act, 2003] shall be omitted. After the introduction of Goods and Service Tax power to levy tax in respect of goods and services would be distributed among the central and state government. Under current law, this power lies with central government only.
269(1) Taxes on the sale or purchase of goods and taxes on the consignment of goods shall be levied and collected by the Government of India but shall be assigned and shall be deemed to have been assigned to the States on or after the 1st day of April, 1996 in the manner provided in clause (2). Taxes on the sale or purchase of goods and taxes on the consignment of goods except as provided in article 269A shall be levied and collected by the Government of India but shall be assigned and shall be deemed to have been assigned to the States on or after the 1st day of April, 1996 in the manner provided in clause (2). After the words “consignment of goods’’, the words, figures and letter “except as provided in article 269A” shall be inserted. This is a consequential amendment to pave the way for introduction of goods and service tax.
269A. _______________ (1) Goods and services tax on supplies in 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 prescribed by Parliament by law.

 

Explanation I. For the purposes of this clause, supply of goods or of services or both in the course of import into the territory of India shall be deemed to be supply of goods, or of services, or both in the course of inter-State trade or commerce.

 

Explanation II. For the purpose of this article, “State’’ includes a Union territory with Legislature.

 

(2) Parliament may,  by law, formulate the principles for determining when a supply of goods, or of services, or both takes place in the course of inter-State trade or commerce.

A new article is proposed to be inserted. Central government would levy goods and service tax on inter-state transactions of goods as well as services. However, such tax would be apportioned between central government and state governments.
270(1) All taxes and duties referred to in the Union List, except the duties and taxes referred to in articles 268,268A and 269 respectively, surcharge on taxes and duties referred to in article 271 and any cess levied for specific purposes under any law made by Parliament shall be levied and collected by the Government of India and shall be distributed between the Union and the States in the manner provided in clause (2). All taxes and duties referred to in the Union List, except the duties and taxes referred to in articles 268,269 and 269A respectively, surcharge on taxes and duties referred to in article 271 and any cess levied for specific purposes under any law made by Parliament shall be levied and collected by the Government of India and shall be distributed between the Union and the States in the manner provided in clause (2). In clause (1), for the words, figures and letter “articles 268, 268A and 269”, the words, figures and letter “articles 268, 269 and 269A” shall be substituted. This is a consequential amendment to pave the way for introduction of goods and service tax.
270(1A) ___________ Goods and services tax levied and collected by the Government of India shall also be distributed between the Union and the States in the manner provided in clause (2). A new article is proposed to be inserted. This proposed clause would allow distribution Goods and service tax collected on inter-state transactions between central and state governments. Such distribution shall be done as per the formula prescribed in clause (2).
271 Notwithstanding anything in articles 269 and 270, Parliament may at any time increase any of the duties or taxes referred to in those articles by a surcharge for purposes of the Union and the whole proceeds of any such surcharge shall form part of the Consolidated Fund of India. Notwithstanding anything in articles 269 and 270, Parliament may at any time increase any of the duties or taxes referred to in those articles except the goods and service tax by a surcharge for purposes of the Union and the whole proceeds of any such surcharge shall form part of the Consolidated Fund of India. After the words “in those articles”, the words except “the goods and services tax” shall be inserted. Central government will not have authorization to increase the Goods and Service tax by imposing surcharge.
279A

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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(1)The President shall, within sixty days from the date of commencement of the Constitution (One Hundred and Fifteenth Amendment) Act, 2011, by order, constitute a Council to be called the Goods and Services Tax Council.

 

(2)The Goods and Services Tax Council shall consist of the following members, namely:—

 

(a) the Union Finance Minister – Chairperson;

 

(b) the Union Minister of State in charge of Revenue – Member;

 

(c) the Minister in charge of Finance or Taxation or any other Minister nominated by each State Government – Members

 

(3) The Members of the Goods and Services Tax Council referred to in sub clause (c) of clause (2) shall, as soon as may be, choose one amongst themselves to be the Vice-Chairperson of the Council for such period as they may decide.

 

(4) The Goods and Services Tax Council shall make recommendations to the

Union and the States on—

 

(a) the taxes, cesses and surcharges levied by the Centre, the States and the local bodies which may be subsumed in the goods and services tax;

 

(b) the goods and services that may be subjected to or exempted from the goods and services tax;

 

(c) the threshold limit of turnover below which goods and services tax may be exempted;

 

(d) the rates of goods and services tax; and

 

(e) any other matter relating to the goods and services tax, as the Council may decide.

 

(5) While discharging the functions conferred by this article, the Goods and Services Tax Council shall be guided by the need for a harmonised structure of Goods and services tax and for the development of a harmonised national market for goods and services.

 

(6) One-third of the total number of members of the Goods and Services Tax Council shall constitute the quorum at its meetings.

 

(7) The Goods and Services Tax Council shall determine the procedure in the performance of its functions.

 

(8) Every decision of the Goods and Services Tax Council taken at a meeting shall be with the consensus of all the members present at the meeting.

 

(9) No act or proceedings of the Goods and Services Tax Council shall be invalid merely by reason of—

 

(a) any vacancy in, or any defect in, the constitution of the Council; or

 

(b) any defect in the appointment of a person as a Member of the Council; or

 

(c) any irregularity in the procedure of the Council not affecting the merits of the case.

 

Explanation.—For the purposes of this article, “State’’ includes a Union territory with Legislature.

A new article is proposed to be inserted. This proposed article states that Goods and Services tax council shall be formulated for purpose of governing the matters related to Goods and Services tax. There are various clauses to this article, which provides structure of the council, functions of the council etc. The GST council shall make recommendations to the union and the states on taxes, cess surcharge levied by central and states on goods and services, threshold limit for GST and any other matter. 1/3rd   shall be the quorum to validate a meeting of council. Every decision shall be taken with consensus of all the members of GST council.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

279B —————– (1) Parliament may, by law, provide for the establishment of a Goods and Services Tax Dispute Settlement Authority to adjudicate any dispute or complaint referred to it by a State Government or the Government of India arising out of a deviation from any of the recommendations of the Goods and Services Tax Council constituted under article 279A that results in a loss of revenue to a State Government or the Government of India or affects the harmonised structure of the goods and services tax.

 

(2) The Goods and Services Tax Dispute Settlement Authority shall consist of a Chairperson and two other members.

 

(3) The Chairperson of the Goods and Services Tax Dispute Settlement authority shall be a person who has been a Judge of the Supreme Court or Chief Justice of a High Court to be appointed by the President on the recommendation of The Chief Justice of India.

 

(4) The two other members of the Goods and Services Tax Dispute Settlement Authority shall be persons of proven capacity and expertise in the field of law, economics or public affairs to be appointed by the President on the recommendation of the Goods and Services Tax Council.

 

(5) The Goods and Services Tax Dispute Settlement Authority shall pass suitable orders including interim orders.

 

(6) A law made under clause (1) may specify the powers which may be exercised by the Goods and Services Tax Dispute Settlement Authority and provide for the procedure to be followed by it.

 

(7) Notwithstanding anything in this Constitution, Parliament may by law provide that no Court other than the Supreme Court shall exercise jurisdiction in respect of any such adjudication or dispute or complaint as is referred to in clause (1).

 

Explanation._ For the purpose of this article, “State’’ includes a Union territory with Legislature.

A new article is proposed to be inserted. This proposed article states that Goods and Services tax Dispute Settlement Authority shall be formulated in order to resolve disputes/complaints referred by any state government or government of India. There various clauses to this article which provides structure of such Authority, eligibility of the members of the Authority, functions of such Authority etc. Such Authority is authorized to issue various orders including interim orders. Such Authority shall have certain other powers as conferred by constitution.

 

286(1) No law of a State shall impose, or authorise the imposition of, a tax on the sale or purchase of goods where such sale or purchase takes place—

  1. outside the State; or
  2. in the course of the import of the goods into or export of the goods out of, the territory of India.
No law of a State shall impose, or authorise the imposition of, a tax on the supply of goods of goods or of services or both, where such supply takes place—

  1. outside the State;
  2.  In the course of the import of the goods or services or both into, or export of the goods or services or both out of, the territory of India.
For the words “the sale or purchase of goods where such sale or Purchase takes place’’, the words “the supply of goods or of services or both, where such supply takes place” shall be substituted.

In sub-clause (b), for the word “goods”, at both the places where it occurs, the words “goods or services or both” shall be substituted;

This is a consequential amendment to pave the way for introduction of goods and service tax. All inter-state transactions and import and export of goods or services or both will taxed by a central legislation.
286(2) Parliament may by law formulate principles for determining when a sale or purchase of goods takes place in any of the ways mentioned in clause (1). Parliament may by law formulate principles for determining when a supply of goods or of services or both in any of the ways mentioned in clause (1). In clause (2), for the words “sale or purchase of goods takes place’’, the words “supply of goods or of services or both’’ shall be substituted. This is a consequential amendment to pave the way for introduction of goods and service tax.
286(3) Any law of a State shall, in so far as it imposes, or authorises the imposition of,—

(a) a tax on the sale or purchase of goods declared by Parliament by law to be of special importance in inter-State trade or commerce; or

(b) a tax on the sale or purchase of goods, being a tax of the nature referred to in sub-clause (b), sub clause (c) or sub-clause (d) of clause (29A) of article 366, be subject to such restrictions and conditions in regard to the system of levy, rates and other incidents of the tax as Parliament may by law specify.

Any law of a State shall, in so far as it imposes, or authorises the imposition of a tax on the sale or purchase of goods declared by Parliament by law to be of special importance in inter-State trade or commerce be subject to such restrictions and conditions in regard to the system of levy, rates and other incidents of tax as Parliament may by law specify. This article is proposed to be substituted. Previously tax on sale or purchase of goods which are of special nature in course of inter-state trade (as declared by parliament) was used to be imposed by state law without any restrictions but after this amendment such imposition of tax will subject to certain restrictions and conditions.

 

286(4) _____________ Nothing in clause (3) shall apply to a law of a State insofar as it imposes or authorises the imposition of goods and services tax. A new article is proposed to be inserted. This is a consequential amendment to pave the way for introduction of goods and service tax.
366(12A) _____________  Goods and services tax means any tax on supply of goods or services or both except taxes on the supply of the following goods, namely:—

 

(i) petroleum crude;

(ii) high speed diesel;

(iii)motor spirit (commonly known as petrol);

(iv) natural gas;

(v) aviation turbine fuel; and

(vi)alcoholic liquor for human consumption.

A new article is proposed to be inserted. Following categories of goods shall be kept outside the ambit of Goods and Services tax. Thus, these categories of goods will continue to be exigible for VAT and Excise:-

 

(i) petroleum crude;

(ii) high speed diesel;

(iii) motor spirit (commonly known as petrol);

(iv) natural gas;

(v) aviation turbine fuel; and

(vi)alcoholic liquor for human consumption

366(29A)  Tax on the sale or purchase of goods includes—

( “tax on the sale or purchase of goods” includes—

(a) a tax on the transfer, otherwise than in pursuance of a contract, of property in any goods for cash, deferred payment or other valuable

consideration;

(b) a tax on the transfer of property in goods (whether as goods or in some other form)

involved in the execution of a works contract;

(c) a tax on the delivery of goods on hire purchase or any    system of payment by

instalments;

(d) a tax on the transfer of the right to use any goods for any purpose (whether or not for a

specified period) for cash, deferred payment or other valuable consideration;

(e) a tax on the supply of goods by any unincorporated association or body of persons to a member thereof for cash, deferred payment

or other valuable consideration;

 

_____________ Omitted This is a consequential amendment to pave the way for introduction of goods and service tax.
368 An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, 4[it shall be presented to the President who shall give his assent to the Bill and thereupon] the Constitution shall stand amended in accordance with the terms of the Bill:

Provided that if such amendment seeks to make any change in—

(a) article 54, article 55, article 73, article 162 or article 241, or

An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, [it shall be presented to the President who shall give his assent to the Bill and thereupon] the Constitution shall stand amended in accordance with the terms of the Bill:

Provided that if such amendment seeks to make any change in—

(a) article 54, article 55, article 73, article 162 article241,article279A or

article 279 B, or

In article 368 of the Constitution, in clause (2), in the proviso, in clause (a), for the words and figures “article 162 or article 241”, the words, figures and letters “article 162, article 241, article 279A or article 279B” shall be substituted. Scope has been increased by including two more articles for the purpose of amendment in constitution.
Sixth schedule Para 8 sub para(3) Powers to assess and collect land revenue and to impose taxes.

(c) taxes on the entry of goods into a market for sale therein, and tolls on passengers and goods carried in ferries; and

(d) taxes for the maintenance of schools, dispensaries or roads.

Powers to assess and collect land revenue and to impose taxes.

(c) taxes on the entry of goods into a market for sale therein, and tolls on passengers and goods carried in ferries.

 

(d)taxes for the maintenance of schools, dispensaries or roads and

 

(e) taxes on entertainment and amusements.

(i) In clause (c), the word  “and” occurring at the end shall be omitted;

(ii) in clause (d) , the word “and” shall be inserted at the end

 

(iii) after clause (d), the following clause shall be inserted, namely:—

 

“(e) Taxes on entertainment and amusements”.

New category has been included for the purpose of imposing tax thus expanding the scope.
Seventh schedule- Union List Entry 84 Duties of excise on tobacco and other goods manufactured or produced in India except—

(a) alcoholic liquors for human consumption;

(b) opium, Indian hemp and other narcotic drugs and narcotics, but including medicinal and toilet preparations containing alcohol or any substance included in sub-paragraph (b) of this entry.

Duties of excise on the following goods manufactured or

produced in India, namely:—

(a) petroleum crude;

(b) high speed diesel;

(c) motor spirit (commonly known as petrol);

(d) natural gas;

(e) aviation turbine fuel; and

(f) tobacco and tobacco products

This article is proposed to be substituted. Following categories of goods shall be kept outside the ambit of Goods and Services tax. Thus, these categories of goods will continue to be exigible for VAT and Excise:-

 (i) petroleum crude;

(ii) high speed diesel;

(iii) motor spirit (commonly known as petrol);

(iv) natural gas;

(v) aviation turbine fuel; and

(vi)alcoholic liquor for human consumption

Seventh schedule-Union List

Entry 92

 

 Taxes on the sale or purchase of newspapers and on advertisements published therein _____________ Omitted Previously central government was authorized to levy tax on sale or purchase of newspapers and advertisements published therein. This amendment will withdraw the power of central government to do so.
Seventh schedule-Union List

Entry 92C

 

Taxes on services. _____________ Omitted Entry of union list authorizing central government to levy tax on services shall be omitted.
Seventh schedule-State List

Entry 52

Taxes on the entry of goods into a local area for consumption, use or sale therein. Taxes on the entry of goods into a local area for consumption, use or sale therein to the extent levied and collected by a Panchayat or a Municipality. This article is proposed to be substituted. This amendment would reduce the scope of imposition of taxes by state government on the entry of goods into a local area to the extent these goods are for sale in Panchayat or a Municipality.
Seventh schedule-State List

Entry 54

Taxes on the sale or purchase of goods other than newspapers, subject to the provisions of entry 92A of List I. Taxes on the sale, other than sale in the course of inter-State trade or commerce or sale in the course of international trade and commerce of, petroleum crude, high speed diesel, natural gas, motor spirit (commonly known as petrol), aviation turbine fuel and alcoholic liquor for human consumption. This article is proposed to be substituted. VAT will continue on the sale of petroleum crude, high speed diesel, natural gas, motor spirit (commonly known as petrol), aviation turbine fuel and alcoholic liquor for human consumption.

These sales would not be covered in GST.

Seventh schedule-State List

Entry 55

Taxes on advertisements other than advertisements published in the newspapers and advertisements broadcast by radio or television. ____________ Omitted Power of state government to levy tax on advertisements will be withdrawn and such tax would be subsumed in GST.
Seventh schedule-State List

Entry 62

Taxes on luxuries, including taxes on entertainments, amusements, Betting and gambling. Taxes on entertainments and amusements to the extent levied and collected by a Panchayat or a Municipality or a Regional Council or a District Council This article is proposed to be substituted. Taxes on entertainments and amusements can be levied by State Governments only to the extent levied and collected by a Panchayat or a Municipality or a Regional Council or a District Council

3. Conclusion

After reading the above Bird’s Eye view of the said bill I am of the view that you will be quite clear about the various provisions in the said bill. This Bill did not got the assent of the president of India and reason behind the same was that bill was not acceptable to all the state and thereby needs detailed changes in each and every provision. I would also like to give you the highlights of this bill which are as follows:

3.1 GST Design – The Committee was of the opinion that before proceeding to enact ‘The Constitution (One Hundred and Fifteenth Amendment) Bill, 2011, broad consensus on key issues concerning the implementation of GST should be arrived at between the Centre and the State Governments.

GST may be made optional for States as was done in the case of VAT

3.2 Compensation Mechanism – It is proposed that there should be a proper compensation mechanism in order to ensure that revenues streams in the short run.

3.3 Administration and Information Technology (IT) Mechanism –Committee is of the view that seamless IT infrastructure, uniform administrative paradigms, unified tax credit clearing mechanism are compulsorily required for the success of Goods and services tax scheme. The Committee urged the Central Government to provide technical assistance and capacity building at State level, which would help in developing robust IT practices.

3.4 Integrated Goods and Services Tax (IGST) – The Committee observed that IGST transactions would be revenue neutral. However, in practice, there may be a possibility of a positive balance in the proceeds of IGST at the end of a fiscal year. Therefore, they advised that a suitable proviso in the Article 269A in both Clause 9 and Clause 10 of amendment Bill may be made for distribution of remaining proceeds of IGST when the accounts of the fiscal year have been settled.

3.5       GST Dispute Settlement Authority – Committee stated that proposed GST Dispute Settlement Authority would affect the fiscal powers of Parliament and the State Legislatures. Therefore, they observed that proposed that Article 279B providing for GST Dispute Settlement Authority should be omitted instead constitution should empower the GST Council to resolve disputes so arising.

3.6  Consensus – Here comes the main issue!!!

The Committee noted that the decision in the GST Council whenever there is a consensus, which implies that all the members present would have to agree on to a single proposal before a decision is given. This is impossible. Even if one State differs, the decision cannot be taken and in India structure decision can never be taken like this.

Article 279 A(8) – Committee therefore recommended that decision shall be taken when it is passed by more than three-fourths votes of the representatives present in the meeting and, out of the total voting power one-third weightage will be for central representatives and two-thirds for state representatives.

Article 279 A(6) – Increase in the quorum to half from the proposed one-third.

3.7  Declared Goods – In order to ensure that there is no unilateral decision by the Centre for ‘declared goods’ same were to be kept outside the purview of GST.

3.8       Entry Tax – Committee opined that the entry tax in general should be subsumed in GST and Bill may empower the States to collect entry tax for distribution to local bodies instead of leaving it to be collected by different local bodies.

3.9  Floor Rate – Committee was of the view that there should be a floor rate and a ceiling rate within which the States will have the freedom to decide the tax rate.

3.10  Concluding remarks of Committee – In conclusion, Committee was of the view that the Constitutional (Amendment) Bill should not ideally include specific aspects relating to rates, exemptions, exclusions, thresholds, administrative arrangements etc. What should be included in the laws and rules should not form part of the Constitution of India. Committee also wrote that present Bill relating to GST, is not well-drafted from this perspective and, therefore, requires amendments as suggested above.

CA. Rajat Mohan

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One Reply to “GST Constitution Amendment Bill- A Comparative Analysis”

  1. s.krishna appa rao says:

    by GST BILL what will be benifitted to common man.

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