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Corporate News *  Missing seized records must be considered while testing ITC claim; duplicate GST demands ordered corrected: Delhi High Court. *  GST appeal can’t be rejected without addressing taxpayer’s grounds: Allahabad High Court. *  Surplus IGST credit can offset CGST, SGST shortfall: GSTAT. *  GST refund can’t be denied when cancelled airfares are returned with tax: GSTAT. *  3 Hearing notices issued within 2 minutes: Gujarat High Court flags portal flaw, seeks report. *  GSTR-9, GSTR-9C filing for FY 2025-26 enabled; pending GSTR-1 and GSTR-3B must be filed first. *  Dupattas are exempt fabrics, can’t be taxed as fibres at 4%: Madras High Court. *  Full transitional credit allowed on capital goods received after GST rollout: GSTAT denies Rs. 6.99 lakh export duty credit. *  GST return mismatch alone can’t justify fraud proceedings: GSTAT orders fresh adjudication under section 73. *  Supplier found non-existent later can’t alone justify input tax credit denial: GSTAT. *  GST interest stops once tax reaches government account, can’t run until return filing: GSTAT. *  Cancelled flat booking- GST refund can’t be denied without excluding COVID period from limitation: GSTAT. *  India notifies rules of origin for India–New Zealand FTA. *  Incomplete E-bike kits classifiable as complete vehicles, but not eligible for CKD duty concession: CESTAT. *  Same GST rate on main input and output can’t by itself bar inverted duty refund: GSTAT. *  Unjust enrichment doesn’t apply to customs refunds from assessments finalised before July 13, 2006: Gujarat High Court. *  CENVAT credit can’t be denied solely because plant And machinery are embedded in earth: Karnataka High Court. *  DFIA exports ineligible for RoDTEP benefits; customs directs repayment with applicable interest. *  Second E-Way bill alone doesn’t prove another supply: GSTAT. *  Bail denied in Rs. 1.19 crore fake GST refund case over risk of accused absconding again: Punjab and Haryana High Court. *  GST registration can be restored after revocation deadline if outstanding dues are paid: Gauhati High Court. *  Multiple GST proceedings over same suppliers: Calcutta High Court directs dept. to share findings for adjudication. *  E-Governance portal services not OIDAR, fixed deposit interest not taxable: CESTAT. *  Rs. 500 Stamp duty required on authority letters for CAs, CMA and GST practitioners in Pune GST division.  *  Rs. 1.10 crore GST refund must be paid in cash after business closure: Allahabad High Court. *  Godown rent attracts 18% GST even when used exclusively for exempt agricultural warehousing: AAR. *  GST portal launches "Multi-State Registration" facility: one master TRN for registration applications across multiple States/UTs. *  RoDTEP scheme extended till 31st December, 2026.  *  Mere disagreement with order can’t override Rs. 20 lakh appeal limit: GSTAT. *  Customs interest can’t be backdated before confiscation liability is determined; nearly 8 year period excluded: Delhi High Court.
Subject News *  GST summons: anticipatory bail maintainable without arrest order, but relief denied in evasion case: Allahabad High Court. *  GST Appeal can’t be decided without hearing taxpayer’s objections to fresh evidence: Allahabad High Court. *  GST ITC can’t be reversed merely because supplier grants discount without reducing tax liability: GSTAT. *  Mere quoting of GST provision is not a valid charge: GSTAT quashes ITC denial. *  Personal hearing mandatory before adverse GST order, even without taxpayer’s request: Rajasthan High Court. *  Parallel bail pleas without full disclosure amount to abuse of process Rs. 43.08 crore GST case sent for fresh hearing: Supreme Court. *  GST refund based on unchallenged advance ruling can’t be recovered using later circular: GSTAT. *  Payment of GST alone doesn’t end interest and penalty liability when tax and interest remain unpaid beyond 30 days of notice: GSTAT. *  GST demand over builders’ 80% procurement rule requires reasoned adjudication: GSTAT. *  Eligible ITC doesn’t automatically entitle taxpayers to compensation cess refund on domestic sales: GSTAT. *  GST confiscation order passed before reply deadline invalid: GSTAT. *  GST interest can’t be retained after tax refund on delayed export receipts: Punjab & Haryana High Court. *  GST appeal can’t be dismissed over pre-deposit shortfall without opportunity To respond: Bombay High Court. *  DGGI SCN can’t be challenged before reply and adjudication:Chhattisgarh High Court. *  GST input tax credit can’t be denied solely due to supplier’s retrospective registration cancellation: GSTAT. *  GST notice must explain fraud allegations; merely repeating section 74 Is not enough:  Himachal Pradesh High Court. *  Audit detection alone can’t justify GST fraud penalty; specific suppression must be proved: GSTAT. *  GST order uploaded only under ‘Additional Notices’ tab without separate intimation set aside: Calcutta High Court. *  Service Tax appeal can’t be rejected for missing pre-deposit proof when payment is already recorded: CESTAT. *  SGST dept. can’t hear appeal against CGST order: Calcutta High Court. *  Mere dispatch of tax order can’t prove service or make appeal time-barred: CESTAT. *  Dealer incentives can’t be taxed merely on ledger entries: CESTAT. *  DGFT orders quashed for failure to supply DRI letter relied upon in SCN: Bombay High Court. *  GST penalty u/s 122(1A) can’t apply to Pre-2021 transactions; unregistered beneficiaries also covered: Delhi High Court. *  Expired E-way bill caused by wrong PIN code can’t justify GST penalty without intent to evade tax: GSTAT. *  Used railway rails can’t be taxed as track material without proof they are fit for reuse: CESTAT. *  Earlier DGGI notice doesn’t bar separate GST demand on different issue: Delhi High Court. *  ITC dispute involves no question of law: GSTAT directs appeal to Vice-President. *  Earlier DGGI notice doesn’t bar separate GST demand On different issue: Delhi High Court. *  No E-way bill required for interstate goods movement in november 2017: GSTAT quashes detention and penalty.  

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Publish Date: 08 Sep, 2015
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1% Additional Levy: Where is it heading us?

1% Additional Levy: Where is it heading us?

 

An article by:-
CA. Pradeep Jain
CA. Preeti Parihar
Sharad Bang
 

Introduction:-
 
Goods and Service Tax (GST) has been a topic of debate in the recent past. With the NDA government looking firm to bring in the GST, the members of Rajya Sabha still have a number of objections to raise, and for their very reasons. Finance Minister Arun Jaitley has been strongly contending that the implementation of GST would remove cascading effect of taxes thereby making way for a business-friendly economy. However, on close observation of Clause 18 of the Constitution (122nd Amendment) Bill, it appears that things are quite different than what is being projected. This clause seeks to impose the most talked 1% additional levy by the Centre on supply of goods in course of inter-state trade or commerce. In this article, an effort is being made to analyze this levy and criticism faced by it.
 
What is 1% additional levy?
 
The provisions relating to 1% additional levy have been proposed in clause 18 of the Constitution (122nd Amendment) Bill (popularly known as GST bill). This clause is being divided into four sub-clauses. These clauses are explained as follows:-
 
The sub-clause (1) to the clause 18 says:-
 
“An additional tax on supply of goods, not exceeding one per cent in the course of inter-State trade or commerce shall, notwithstanding anything contained in clause (1) of article 269A, be levied and collected by the Government of India for a period of two years or such other period as the Goods and Services Tax Council may recommend, and such tax shall be assigned to the States in the manner provided in clause (2).”
From analysis of above sub-clause 1, features of this levy can be listed as follows:-
·        It is an additional tax and will be levied over and above the normal GST rate as may be prescribed.
·        It shall be levied in course of inter-state trade of commerce.
·        Its rate will not exceed 1%.
·        It will be levied and collected by Centre for a period of two years.
·        The period of two year can be revised by GST Council.
·        The proceeds from this levy will be assigned to the State in which the supply of goods originates.
 
Further, provisions contained in sub-clause 2 to 4 to the clause 18 are explained as follows:-
 

Sub- clause no. Provision contained
 
2 ·        Collection from this levy shall not form part of consolidated fund of India and will be deemed to be assigned to the State from where the supply originates.
·        Only the proceeds attributable to Union territories shall be credited to Consolidated Fund.
 
3 Centre may prescribe list of goods on which this levy will not be applicable.
 
4 The law related to principles for determining the place of origin (from where the supply of goods takes place) shall be formulated by Parliament.

 
 
Need of such levy:-
 
Since GST is a destination based tax, it is said that initially the manufacturing states or the states where the production of goods is done; will suffer loss. The purpose of this 1% additional tax is to compensate the manufacturing states, i.e., the states from where the supply of goods takes place. However, it is expected that GST will lead to increase in revenues of all the States, thus, the manufacturing states will also gain in long run. Due to this reason, this levy has been proposed for a period of two years only. However, end decision has been kept safe in the hands of GST council. This levy can be said to be a serious effort made by the Centre to convince the States to agree upon the introduction of GST. It is also in line with the recommendations made by the Empowered Committee in their various meetings for the protection of the revenues of the manufacturing States. It is worth noting here that Clause 18 in itself does not make any distinction of a “manufacturing state” and this tax shall be levied by all States who send their produce outside the State.
 
1% Levy: CST in new name?
 
It has been stated by our Finance Minister that the input tax credit of this levy will not be allowed. Thus, this is against the very basic objective of GST. Even the main feature of GST as popularized by the ruling party is that there will be no cascading effect.  When the Credit of this levy will not be allowed where will it go? Definitely, it will be included in the cost of the goods that will further be subject to tax. Thus, cascading effect will be there. Also, it is mentioned that this 1% Additional tax shall be levied for a period of two years or such other period as the Goods and Services Tax Council may recommend. By these features, this levy seems to be replica of Central Sales Tax (CST) levied currently. Also, this levy has most of the inherent features of CST. At the time of introduction of VAT, CST was levied and it was said that it will be reduced year by year and ultimately it will be abolished. This promise was kept in the initial years and rate of CST was reduced from 4% to 3% and from 3% to 2% respectively. However, there was no reduction thereafter and still after around 9 years of implementation of VAT, CST could not be abolished as initially promised by the Government. Thus, the past indicates how far has the government withdrawn any tax after imposing it once? One can never be so sure as to if the duty shall last for two years or twenty!
 
Against the spirit of GST which says “no cascading effect here”:-

GST is a destination based tax and this 1% additional duty is an origin based tax. How can both- the destination based as well as the origin based tax be levied on a single transaction? Also, ironically, it would favour international trade over inter-state trade. As stated earlier, clause 18 in itself does not make any distinction of a “manufacturing state” and this tax shall be levied by all States who send their produce outside the State. This provision in itself is the originator of cascading effect. Let us consider an example- Suppose a dealer in Maharashtra purchases cloth from Delhi and sends it to Punjab for tailoring. The finished goods are sent back to Delhi. Such finished goods are then consigned to Maharashtra for sale. In this way, by the time they reach Maharashtra, they would be laden with an additional tax burden of 3-4%, being 1% for each state. It would be more feasible for the dealer in Maharashtra to import such goods rather than getting them from Delhi.
 
On one hand, the government has been laying emphasis on “Make in India” campaign, wherein, special efforts are being made to ensure the free flow of goods and services in the economy. On the other, additional duty of such kind is being levied. It is beyond our understanding- how such additional duty shall contribute to the free flow of goods and services?
 
Rate of GST is already high, why 1% extra with no credit facility?

Scope of GST would be much wider than any other indirect tax structure. Thus, a no. of goods and services which are not taxable under present structure would also come under the ambit of tax. Also, the rate of GST is already proposed to be around 18-22% which is quite high. A service provider, who currently pays tax @14%, would be liable to pay the tax at a higher rate. The same goes with trader of goods as well. Adding to this, the rate of GST is going to be a single consolidated rate for both goods as well as services. In this manner, a trader of goods has to pay tax for service component also and service provider has to pay tax for goods also. Under such circumstances, when the tax imposition is already going to be higher than the existing situation due to increased rate and wider scope, where does the question arise regarding loss of revenue?
 
 
Compensation of losses already agreed, why provision for this levy:-
 
There is provision in clause 19 of the GST bill wherein the Central Government will compensate the loss occurring to the states due to implementation of GST for five years. When there is already a provision of compensation of loss occurring to the states, then where is the need for additional 1% duty which is totally against the basic principles of GST. Also, the provision of compensation of loss and this 1% additional levy is basically drafted for loss making states during transitional period of GST. When we talk of clause 19, it would result in no profit no loss situation since whatever the loss state is making will be compensated by Centre. However, when it comes to 1% additional levy, though the states making losses will have some income from this tax but the states already making profit or under no profit no loss situation will definitely gain extra. This seems to be against the basic principles of introducing this levy as the states gaining will gain more and that too with the cost of other states which shall have to bear the cost of this 1% additional levy.
 
 
While parting:-
 
Going by the progressions, it wouldn’t be wrong to state that Modi Sarkar has actually lost the basic sight of GST. What was depicted to be the most simple taxation system is now being turned into a cobweb of complications. They need to practise what they preach. Not just the people, even the bureaucratic system of our nation is not ready to accept such complicated taxation system.
 
To conclude, it can be said that the GST era is just round the corner. The financial Godfathers of our nation must think about the disastrous impacts which the additional tax can create on our economy. Levying an additional tax can never be a business catalyst. These are certainly not the “Ache Din” that India was waiting for. The need of the hour is to dismantle this additional duty and make way for an economy which is best suited for trade, commerce and entrepreneurs. And only then, shall we be able to convert the dream of “Start-up India, Stand-up India” into a reality!!!
 

Comments

  • SHUBHAM MITTAL on 17 November, 2015 wrote:

    Very Nice Article!! All the relevant issues are discussed very well, specially one point I would like to mention which I was thinking from last so many days: Why there is need of 1% additional levy(for 2 years) when government has promised to compensate the loss for five years. CA Shubham Mittal
  • RAJESH on 06 November, 2015 wrote:

    Good Article..

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