One Nation, One Tax

Upasana Singh Bhagnani and Siddharth Addy do an exploratory research based on the extensive study of the 101st Amendment and Goods and Service Tax to understand the implication of the Amendments and what additional requirements will lead to the ultimate goal of One Nation, One Tax.

Introduction

The classification of taxation is simply put under two heads of direct and Indirect Taxation. Direct Taxation, which can be directly paid by the individuals to the government authorities whereas in Indirect Taxation, the seller acts as an agent to the government to collect taxes from the consumers. In India, the Indirect Taxation included the following heads of taxes before the first. Under the Central levy, it included Customs Duty, Central Excise, Service Tax and Central Sales Tax. Under the State levy, it included VAT, Entry Tax and Ancillary Taxes.

The expected intention behind the GST Act was to get uniformity of taxation within the entire nation and removal of cascading effect of VAT and multiplicity of taxes but does the classification of CGST, SGST, IGST removes hindrances?

The cascading effects could be a hard hit for the economic development of the nation since GST is an IT driven ¹, we cannot be sure of the factum that Indian framework is well equipped with the infrastructure and workplace availability to empower the law, with the introduction of GST there will be a higher tax burden on small scale industries with lower turnover rates, With the introduction of GST there has been a requirement of excessive paperwork and compliance for the companies, The inadequacies of the tax officer because of the lack of the traning by the goverment officials with the new taxation structure can effective cost a fortune to the economy and its development.

The Game Changer

The idea of “One Nation, One Tax” was first propounded by Atal Bihari Vajpayee during his presidential tenure in the year 2000. The ratio decidendi behind the idea was to bring reform in the taxation structure of the nation, after which the government formed a GST committee to draft in relation to GST laws. The laws of the GST were amended a number of times and after failed attempts in the years 2011, 2013, 2015, it was successfully passed by the parliament in the year of 2016 in the historic 101^st amendment of the Indian Constitution. GST is known as the Goods and Service Tax which came into force from first 1^stJuly 2017 thereof. The taxing structure under the GST revolved around laying down a uniform taxation system throughout the nation replacing tariff and non-tariff barriers within the economy. The GST slab is distributed between the taxation bracket of 5%, 12%, 18% and 28%. ² One of the sacrosanct intentions of the Government of India was to create uniformity within the economic sphere of the country which would promote socio-economic and infrastructural development in the economy.

The Three Main Types of GST

CGST: - The CGST is Central Goods and Service Tax is part of the idea of “one nation, one tax” it is levied by the centre and was introduced under the 101^st amendment.

SGST: - The SGST is State Goods and Service Tax it is an integral part of the “one nation, one tax” it is levied by the state government.

IGST: - The IGST is Integrated Goods and Service Tax is part of the idea of “one nation, one tax” introduced in the 101^st amendment. The IGST is levied by the central government when there exists interstate trade and commerce between the states.

CGST are charged by the central goverment while SGST are charged by the state goverment as for the regulations guiding the act; in case of CGST the CGST act regulates it and for the SGST the SGST act regulates it. Both the State and the Central Governments have agreed to distribute their levies between them with a predefined revenue-sharing proportion. However, Section 8 of the GST Act clearly mentions that the Tax rate will not exceed 14% for each of the Governments and the taxes will be charged on all the intra-state supplies (when the location of the supplier and the place of supply.

The introduction of GST was to reduce the cascading taxation effect in the economy through the sudden movement of the government leading to a far-reaching impact in the economy. The businessmen were not aware of how to use the taxation system in the country which led to havoc in the country from simple arguments between the owner and the customers to charging wrong tax fares, the companies were going out of business, and it led to economic slowdown which inculcated economic stagflation in the nation.

The Evolution of the Taxation Structure in the Economy

After the post-independence period, central excise duty was levied on only very few commodities i.e. like raw material and intermediate input. The first reform was suggested by the Taxation Enquiry Commission during the years 1953 to 1954 under the chairmanship of Dr. John Matthai. It recommended a levy of tax on interstate sale subject to a ceiling of 1% which the states would administer and retain the revenue. The unions were assigned power to levy a tax on sale and purchase on interstate trade and commerce by the introduction of the sixth amendment. The number of rates was too many on which taxes were levied and paid, which becamea burden to the Indian citizens, leading to significant cascading of the taxation system and classification of dispute.

The taxation committee was constituted in 1976 inter alia recommended ad volume rates, and inputs of value-added tax at the manufacturing level, which was achieved by 1996 to 1997. The taxation reform again took a major toll with the introduction of Economic policy of 1991. It included a broadening of the scope of taxation by taxing services and lowering of rates and extension of value-added tax duties were subject to special excise duty.

Taxation of service was introduced in the year 1999 but its horizon was very limited to only 3 service based industries. The rate at the initial period was low but gradually increased to 15%.

A report titled “Reform of Domestic Trade Taxes in India ³” brought reform in indirect tax by the National Institute of Public Finance and Policy under the chairmanship of Dr.AmareshBagchi. Prepared in the year of 1994, some of the major recommendations for reformation were replacing sales tax by VAT by moving to a multi state system of taxation, allowing input tax credit for all inputs, harmonization and rationalization of tax rates across the state, modernization of tax administration, computerization of operations, and simplifying of forms and procedures of taxation.

In the year 1999, the Union Finance Minister designed VAT and Haryana was the first state to implement VAT in 2003. By 2005, VAT was implemented by all the states of India and by the 1^st of January 2008, Uttar Pradesh came under the preview of VAT taxation system.

Before the introduction of the uniform taxation system in the nation, the taxation structure was a farrago of central, state, and local levies. Post the introduction of GST, it subsumed all the tax under one single tax, which changed the whole financial architecture of the nation. The introduction of GST led to far reaching impact in the nation. It reduced the cascading effect of taxation to a certain extent but also created a certain situation which caused havoc in the context of the Indian economy.

101^ST AMENDMENT OF THE INDIAN CONSTITUTION:-

The 101^stAmendment recorded its assent by the president of India on the 8^th of September 2016. The country, having a federal supremacy with unitary provision, guided the nation towards a uniform taxation system, thereby promoting the code of equality within the nation. As a federation of power, power is evenly distributed between the center and state thereof. It is divided under the three lists: union, state, and concurrent list under the provisions of article – 268 to 293 in the part - 12 of the INDIAN CONSTITUTION.

• 1. The state legislature has exclusive power on the subject enumerated in state list, which are 20 in number out of 61 subjects.
• 2. Both parliament and state legislature have power to levy taxes on subject matter which are enumerated in concurrent list, which are 3 in number out of 52 subjects.

Proceeds of taxes were levied and collected by the center. It was distributed between the center and the state. The GST on supply in the course of interstate trade and commerce shall be levied and collected by the government of India and shall be appropriated between the union and state as provided by the by laws provided of the parliament and on the recommendation of the GST Council. ⁴ The amount appropriated by the state does not form the consolidated fund of India. Further, the Government of India has made provisions for the opposition parties where if any loss arises out of the GST, then the parliament will provide the state with compensation under the same amendment.

Under the 101^st Amendment, the following alterations were made, which contributed towards achieving the constitutional goals of “Uniform Taxation structure” in the nation.

• 1. The residuary power of the legislation under the ambit of Article 248 is now subject to Article 246 (A) of the INDIAN CONSTITUTION.
• 2. ARTICLE 249 of the INDIAN CONSTITUTION has been amended so that is 2/3^rd resolution is passed by the Rajya Sabha; the parliament will have the necessary power to make laws related to GST for the national interest.
• 3. ARTICLE – 250 of the INDIAN CONSTITUTION has been amended so that laws related to GST could be made even during the GST period.
• 4. ARTICLE 268 – A has been repealed so that Service Tax is now subsumed with GST

Furthermore, the amendment provided that the parliament shall, by recommendation of the GST council, provide for compensation to the state for loss of revenue arising on account of implementation of Goods and Service tax for a period of 5 years this resulted in compensation of the Cess Bill.

THE REGULATORY FRAMEWORK (GST COUNCIL):-

The article provided for constituting the GST council by the president within 60 days of this act coming into force. ⁵

The GST Council will have the following members:-

• 1. Union Finance Minister – Chairman of the GST Council
• 2. One nominated member of each state who is in charge of finance or taxation.

GST Council will be empowered to take decision on the following:-

• 1. The taxes, cess and surcharge levied by the union, state and local bodies are now subsumed in GST
• 2. Model GST, Principle of levy, apportionment of integrated goods, service tax that govern the principle of supply.
• 3. The threshold limit of turnover below which GST may be exempted from the GST the rates including floor rates with bonds of Good
• 4. Any special rates or rates specified for a specific period to raise additional resources during natural calamity or disaster.
• 5. Any other matter related to the GST Council as the council may decide.

All decisions taken at the GST council will be taken on the basis of voting.

Following changes were made with an reformative approach in the VII schedule to lay down changes in taxation structure i.e. Entry 84 – Earlier comprised of the duties on tobacco, alcohol, opium, Indian Hemp, Narcotics Drug, Medical Prep, Toilet Prep after this amendment it will now comprise of Crude oil, Petrol, Natural Gas, Thus this are out of the ambit of GST and are subject to union jurisdiction ,Entry 92 – Newspaper, Advertisement published therein has been deleted thus they are now under the ambit of GST, Entry 92 (C) - Service tax has now been deleted from the union list , Entry 52 – Entry Tax for sale has been deleted. ,Entry 54- Taxing on sale or Purchase of goods other than newspaper subjected to provisions of entry 92 A of the petroleum, Crude Oil, High speed Diesel, Motor Gas, Aviation Turbine, Alcohol; but not including sale in the course of interstate trade or commerce., Entry 55 – Advertisement tax has been repealed, Entry 62 – Taxing of Luxury Goods including taxes on entertainment, amusement, gambling has been repealed by these taxes and only to be levied by local government, panchayat, Municipal council or District Council.

Several changes made in VII schedule regarding the taxation structure were largely criticized on various grounds. There was a lack of proper regulatory framework due to which the idea of a single taxation system was unperformed. The revenue generated is less as compared to the predicted sum, therein also inducing stagflation in the economy. The very purpose of eradicating poverty and increasing the standard of living of citizens was left unachieved. The obvious symptom is that the GST, as constructed, has underperformed on revenue. Total revenues were about 1 percent of the GDP less in the last financial year — although the Union Budget seemed to want to hide this fact from the public. This shortfall is almost entirely due to the GST bringing in less than was predicted in last year’s Budget. Moreover, due to the shift of the burden of tax to citizens, more money is spent for the consumption purpose and less saving is done — which is again a major concern for the citizen as far as the scope of sustainability is concerned.

CONSTITUTIONAL HINDRANCES AND POSSIBLE OUTCOMES: -

1. Article 246A

This provision states two things. First, it empowers the State Legislature to make laws with respect to the GST, which has been imposed by the Centre and also makes necessary arrangements for the implementation of such imposed taxes. Second, the Centre will have exclusive power to make laws for the Inter State Trade.

(Now is this provision arbitrary in nature? And curbs down the federal structure? Or is it similar to the residuary power held by the centre)

2. Article 269 A: - Levy and collection of Goods and service tax in course of interstate trade or commerce

In the case of interstate trade and commerce, the Centre shall collect the taxes and apportions between the centre and the states as per the recommendation of the GST Council. (Doesn’t this amount to centralization of power to the centre?) Under this model of the GST, where the centre collects the tax it is required that it assigns the state’s share to state while the state collects its required that it gets apportioned to the Centre’s share to centre.

This provision also dictates that the proceeds under the GST shall not form a part of the Consolidated Fund of India (Does the transparency here gets blurred?)

4. Article 279 (4)

The GST Council shall make “Recommendations” to the union and the states on the subject matter of taxes, cesses, surcharges and other related matters. It is important to understand the legal binding of its recommendations. The meaning of the word recommendation is quite flexible and different from that of prescription but it is quite contrary when read on the report of the task force. The mechanism written there are quiet binding and expository in nature. ⁶ The difference between ‘Recommendation’ and ‘Prescription’ can be understood by the discussion of the case of NaraindasIndurkhya vs. State of Madhya Pradesh (1974). In this case, the Supreme Court specified that recommendation is non-binding and mere suggestive in nature; however, prescription is mandatory in nature. When the article is ordinarily read, it is understood that it is suggestive in nature; but the report of the task force mandates for the compensatory provisions. In order to claim compensation by the state, it is necessary that the application of the GST design applied is ‘flawless’. The methodology to be used for estimating the revenue loss and the compensation shall be decided by the Council itself. The term flawless seems to be vague and transitions to a technology based taxation. It is quite essential to regard errors committed. Overburdening one body with various functions shall destroy the basic essence or purpose of that unit created.

5. Article 279 (A)(11)

As the principle of separation of power expects legislatives, executives and judiciary be separately united, providing judicial role to the same body that legislates complicates and violates the principle of separation of power. Thus, to leave enough space for fair justice, there should be a separate body for dispute resolution mechanism.

6. Article 279 A (9)

As the compensation of losses shall be decided by the council itself here the question of voting comes into picture where its seen that there is not equality in voting. The Union Government shall have 1/3^rd of the total votes casted and all the States together will have 2/3^rdof total. While the requirement of majority is ¾ of the votes casted, it is mathematically impossible to get that unless Union votes in favour of it. Thus it gives more power to the Union to make laws on the taxation in the state as well leaving the State in subordinations power is centralized to the GST Council.

This Article lowers the scope of the state authority incase of losses and has to entirely depend on the GST Council and no help or remedy shall be provided from the Consolidated Fund of India or Central Government.

Implied exclusion of judicial review: -

7. Article 279(A)(10): -

This provision acts as a protective layer to the the GST Council. It protects the constitution of the council under three heads

• 1. Any vacancy or defect in the constitution of the council
• 2. Any defect in the appointment of the members of the council
• 3. Any procedural irregularity not affecting the merits of the case

Dispute Resolution Mechanism: -

8. Article 279 (A) (11)

GST is one of the dreams which India had. Today, when it has arrived, it is in its nascent stage where changes are to be welcomed and progress is to be sought. (this can also be some descriptive and analysis based).

• 1. Continuing differentiation between goods and services
• 2. Transparency with reasoning why such change and objectives
• 3. A transparent government creates faith in the government.
• 4. Too many rates and arbitrary changes, both of which are anticipated leads to adverse Implications for litigation and confusion among the common people.
• 5. An administrative requirement for inter-state dealers to register in every state they trade in, which goes against the common market principle so a common registration should be of help
• 6. Post-tax compliance activity is very challenging for taxpayers’ thus adequate training and self-reliance is to be sought for. Payment of Tax along with the charges of the officials (e.g. Chartered Accountant) fees increases the expenses of the individuals.
• 7. Input tax credit is to be given for output until the seller of input deposits the amount in the government’s exchequer.
• 8. Rewards/Incentives for the whistle blowers will curb corruption and enhance betterment.

BARRIERS TO IMPLEMENTATION OF the GST FRAMEWORK:-

POTENTIAL PROBLEMS: -

1. Lower revenue collection –The GST as implemented by the central government has an adverse effect in the Indian economy by lowering down the taxing rate as per the information and the statistics provided by the financial department as a whole. It was reflected from the report that was released that as of now that the GST as of collected by the central government has fallen down by 5.3% year on year to Rs. 95380 crore in the month of October as per updates from the central financial ministerial board. A slight growth was noticed in the month of September. Indian economic condition is lowering day by day and less of investors are getting interested towards India due to the lack of implementation procedure by the GST council.

Solution: -

Strengthened legal framework within which the GST council would work as it will lead to better implementation procedure thereby attracting more local and international investors of the nation.

The problem and solution is not aligned, we can attempt to write it in a better manner.

1. Uncertainty of input tax credit fraud- With the GST being new to the economy, its slabs and procedures are still not cleared from the government. There being a faulty procedural system not being cleared up leads to the evasion of taxes committed by the authority holding powers to control it. Regarding the GST being implemented, it was recently discovered that eight companies in total from Hyderabad are involved in tax fraud of Rs. 224 crore and has detected many fake invoices being made by them for such transactions in a row which are traded in TMT bars, MS bars etc. This leads to the lower growth of the economy and puts a bad impact on foreign investments as not being cleared and updated by the government of a perfect procedure. This will allow fraud to continue and thus lead to lowering the GDP of the country as a whole.

Solution: -

Having a check on fraud will reduce it. A strengthened legal framework i.e. attaching of Adhar to the transaction will strengthen the system thereby reducing fraud to potential level.

1. Delay in refund- In the beginning of the GST the government of India claimed that those small scale business industries and middle scale of business entities suffering due to the huge rates of taxes being implemented on them would get relieved from such high rates of charges as theGST would lower such burden from them. But subsequently, this has remained the words of the government only as in its first year the central government has paid a lump sum amount for improvement of such industries but now no such improvement on the part of such industries are being reflected as governments are lacking in fund for subsidizing these industries. This occurs due to the inappropriate rates of taxation by the GST and the lack of concrete financial structure being provided by the central government as of now.

Solution: -

Frequent changes in the GST rates must be reduced and a special fund must be created for providing compensation to businesses which are suffering from losses.

1. E- Way bill implementation failure- While implementing the GST, lots of challenges were noticed by them. E-way billing is one of the most important vehicles of implementation on their part as the portal for the e billing system crashed as soon as it was started off due to the loads of pressure not being able to carry out due to the faulty system in designing the portals. It was also a challenge as nearly no one was familiar with such e billing of paying taxes. There was a lack of training on part of the government that they should have provided before such implementation of such improved techniques. In the poor and developing country like India where education is still a constraint for the GST understanding stood in question in the minds of the taxpayers and e billing moreover was a hazardous technique for them as the GST is not only for the developed section the developed section of the society as a whole.

Solution: -

The country has to make advancement in technological knowhow to overcome the issue of E-way bill implementation.

2. Frequent changes in rates- After the GST came into force, it was noticed from various economic and legal points that it has encountered another faulty system with frequent changes in the GST rates. GST implementation was one of the biggest reforms as of now in the Indian economy as a whole and highest tax rates being implemented at the initial stages. It was seen from every aspect that the GST rates in India is the highest among all the developed countries in the world. But later on, many of the GST slabs were revised and reintroduced in the market in order to favour the economic condition as a whole. As day by day goes, the government is changing the GST slab which leads to breaking down the parity of taxes being collected by the central as well as state government. Changes in such slabs also leads to a breakdown of parity of paying taxes as investors are not always being aware of every day changes being made by the government.

3. There is no consensus on vital issues- The introduction of the GST to the Indian economy was a problematic decision on the part of the government as there was no preparation done except for the idea of the GST to be implemented. It was already known on their part that it might have an adverse effect on the economy as a whole which proved to be correct and it was only implemented on the basis of political issues, to make a place for the ruling government in the minds of the voters. Although after facing such challenges and harm being done to the economy, the government at the centre remains silent and keeps calm as always and claims that the economy is growing at a faster rate. No possible steps or solutions are being provided on their part as implementation of the GST was to make rich sections richer and the poor, poorer though they claim for making them stable in next five years.it is evident from the near facts of issues running in the economy as suggested by most economist that such harm caused to the economy of such a developed countries is beyond repairable in the coming years if such situations continues to exist. The government ruling at the centre is reluctant to these issues and does not seem bothered by the harm caused in the economy and has been mute.

4. Affecting the code of equality- At the beginning of the GST, the central government with other financial officers claimed that the concept of the GST would help in removing the loads of tax burden from small scale industries. The concept of the GST as provided by many economists was not at all a wrong and faulty one but before implementation, there are several things that should be kept in mind and the proper structure and way should be laid down. After its implementation, it was quite evident from the fact that small scale industries are being affected much more than the middle and high scale business as the small scale industries are being taxed more than their income, thus leading to more losses on their part. The small scale entities have to pay a larger amount of tax than they should pay. Rather, the large scale industries are being taxed less as their income and revenue throughout the year is in parallel to the amount of tax being charged to them. Thus leading to the code of inequalities among such industries.

5. Ambivalent provisions – Like every reform to be implemented successfully, the GST has brought many ambiguities and problems that affect the economy which leads to lower growth. The purpose of its introduction to Indian economy was to solve certain issues such as removing the double taxation system, simplifying tax payment methods, etc. But rather than solving such issues it brought some irrecoverable problems such as to pay reverse charge of taxation for buying goods from unregistered vendors, taxes being charged on advance of goods etc. Rather solving main issues it has brought up issues which have slowly grasped the economy and leading to the lowering rate of GDP.

6. Anti-profiteering- The most important provision as laid down by the GST council was that of anti-profiteering provisions. The provision mainly speaks about the reduction in tax rate on the supply of goods and services which would benefit the customer or provide beneficiary to the customer by reducing input tax credit to them, leading in corresponding reduction in output price. But this provision remains under the cover of said council as no such steps are being provided or created on their part. It becomes very difficult for any business to implement any complex pricing strategy immediately after there is reduction or increase of tax rate. This happens due to the absence of a clear calculation mechanism which largely affects the wholesaler and retailer and causing difficult situations for industries to take important and strict rule for their business growth. ⁷

7. World capital blockage- As soon as the implementation of the GST was implemented, the government introduced zero rating. According to this concept, it was quite clear and evident that no tax shall be payable for export or supplies of goods and services outside India and it was made specially for SEZ (Special Economic Zone). It was started at the very beginning and provided the seller with a letter of undertaking or bond signed as applicable. This helps businesses especially in the export business as they have never faced problems with the collection of such letters before in the past. Due to the slow functioning of the refund mechanism which leads to a stake in export nationwide. At this point the government came to rescue by implementing an offline method of relaxing the exporters by granting LUT or any bonds as required by them. This leads to the start up process of refunding mechanism which took a decent pace to move.

Solution: -

Thus the government should make their infra-structure stronger and capable of being adapting to such improvised techniques of implementation of the GST so that it might not put a stake in the economy as a whole.

ROADMAP AHEAD IN UNIFORM TAXATION SYSTEM:-

The taxation structure of the nation has been ever evolving since the taxation committee was established in the year 1953 – 1954, since then there has been introduction of several tax type in the nation before the year of 2016 when the historic 101^st Amendment was enacted by the INDIAN CONSTITUTION; the distribution of the GST slab were 5%, 12%, 18% and 28%. The sole object of the GST was to bring uniformity in the taxation structure and for the same purpose the GST Council was also introduced; the government introduced the uniform taxation structure in the nation for the promotion of socioeconomic development.

But in the process of implementation of the taxation structure in the nation there exist many barriers which result to economic slowdown of the nation i.e.:- Lower Revenue collection, uncertainty of input tax credit fraud, delay in refund, there is no consensus on vital issues, E-way bill implementation failure, frequent changes in rates, affecting the code of equality, ambivalent provisions, anti-profiteering, world capital blockage, less efficiency of the first Council.

With the correction of present infirmities in the nation the government dream of “one nation, one tax” which laid down on the ideology of single taxation structure would result to win - win situation:- ⁸

• 1. Removal of cascading taxation structure thereby promoting the goals of one nation, one tax as only one single tax will be charged for the entire value chain.
• 2. It would lead to higher revenue collection in the economy as at numerous levels it will be collected more revenue would ensure higher infrastructure development in the nation thereby increasing the countries FDI.
• 3. Federal financial transparency would ensure transparency between government and public ensuring higher degree of accountability.
• 4. GST would ensure a higher standard of living as the nation's education, job creation level would increase.
• 5. It would reduce overall high degree of tax cost by the introduction of the single taxation structure with reasonable tax bracket.

Therefore, there is need to bring reform in the present framework to live up to the expectations and promises made by the government to us i.e. introduction of federal financial transparency between the government and public would increase the transparency and make the government more accountable, by strengthening the legal framework within which the council would function, having a check on the present fraud which are committed and which would help to reduce white collar crimes i.e. red tapism, bureaucracy etc.