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K.VAITHEESWARAN ADVOCATE & TAX CONSULTANT K.Vaitheeswaran - All Copyrights Reserved Mobile: 98400-96876

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1 K.VAITHEESWARAN ADVOCATE & TAX CONSULTANT K.Vaitheeswaran - All Copyrights Reserved Mobile: Flat No.3, First Floor, No.9, Thanikachalam Road, T. Nagar, Chennai , India Tel.: / , Front Wing, House of Lords, 15/16, St. Marks Road, Bangalore – , India Tel : /

2  1986 – Comprehensive Modvat Credit Scheme on inputs at the manufacturer level.  1994 – Modvat Scheme extended to Capital Goods.  2002 – Limited service tax credit scheme  2003 – Extended service tax credit scheme K.Vaitheeswaran - All Copyrights Reserved

3  2004 – Cross sector credit through Cenvat Credit Rules,  2005 – VAT at the State level.  2016 – GST K.Vaitheeswaran - All Copyrights Reserved

4  Both Government and industry are keen to implement GST.  Governments are looking at increasing the tax base and tax collections through GST.  State is looking at GST as a window for taxing services.  Centre is looking at GST to go beyond the point of manufacture. K.Vaitheeswaran - All Copyrights Reserved

5  Industry wants GST to eliminate the cascading effect of taxes.  Industry considers GST as a path breaking tax reform in the field of indirect taxes. K.Vaitheeswaran - All Copyrights Reserved

6  GST is a tax on both goods and services across the supply chain.  It is levied at every stage of supply.  GST is a levy which commences from the manufacturer / producer / trader and goes upto the retailer.  An effective and efficient GST system would provide for elimination of the cascading effect of taxes.  The GST on inputs is generally available as a credit for set off against the GST on the output supply. K.Vaitheeswaran

7  Internationally VAT is a levy on supply of goods and services.  Around 150 countries have implemented GST or a National level VAT.  Some countries such as Canada and Australia have implemented GST.  Brazil and Canada have a dual GST.  The credit mechanism is seamless.  Generally all sectors are taxed except for a few exceptions. K.Vaitheeswaran

8  National Sales Tax of 9% was proposed in 1989 to eliminate the tax on manufacturers.  It was projected that Canada would become more competitive through GST.  Stiff opposition from the public and liberal party promoted the ruling party to amend the Constitution to get a majority and the tax was introduced from  The Progressive Conservative Party lost the elections and the Liberal Party Leader promised to repeal GST.  However GST was modified and continued. K.Vaitheeswaran

9  Implementation of GST in a federal structure has its own complications.  The Federal, State and even the Municipality have their own powers and sources of revenue.  Empowered Committee has suggested a Dual GST which has been accepted by the Central Government. K.Vaitheeswaran

10  Excise Duty  Countervailing Duty  Customs Duty  Duty of 4% under Section 3(5) of the Customs Tariff  Service Tax  Primary education cess  Secondary education cess  Products specific cess  Research and Development cess K.Vaitheeswaran - All Copyrights Reserved

11  VAT  CST by originating State  Entry tax  Octroi by Municipality  Entertainment tax  Luxury tax  Stamp duty and Registration fee K.Vaitheeswaran - All Copyrights Reserved

12  Excise duty charged by the manufacturer forms part of the price in the supply chain.  Since the cenvat credit is linked with manufacture, the dealer cannot set off the excise duty against any other tax.  CST purchases form part of cost as there is no VAT credit.  VAT has a cascading effect since sale price includes excise, customs, CVD. K.Vaitheeswaran - All Copyrights Reserved

13  Multiple rates  Different valuation mechanisms  Deemed manufacture  Deemed marketability K.Vaitheeswaran - All Copyrights Reserved

14  Multiple rates  Different rates in different States  Different definitions  Multiple forms  Border controls  Cascading effect due to CST purchases  Deviations  Reversal of ITC on CST Transactions  Issues in refunds K.Vaitheeswaran - All Copyrights Reserved

15  Origin based tax  No credit on CST purchases leading to cascading effect  Exempt stock transfer related distortions  Complex law on stock transfer and transit sales  CST Vs. VAT issues – Check post controls K.Vaitheeswaran - All Copyrights Reserved

16  Negative List based regime  Mega Exemption Notification  Exclusions from the definition of service  Transactions involving both goods and services  Dual taxation  Fastest growing collections  States demanding taxation of services K.Vaitheeswaran - All Copyrights Reserved

17  Classification disputes  Valuation disputes  Cenvat on input services  Construction industry  Manpower  Consideration disputes  Taxes on advances  Exemption Notifications  Reverse charge mechanism  Point of taxation K.Vaitheeswaran - All Copyrights Reserved

18  Software  Intellectual Property Rights  Restaurants  Works Contract  AMC Contracts  Goods Vs. Services K.Vaitheeswaran - All Copyrights Reserved

19  Commissioning and Installation  Drawings and designs  Software K.Vaitheeswaran - All Copyrights Reserved

20  First Discussion Paper released by the Empowered Committee of State Finance Ministers on  Report of Task Force of 13 th Finance Commission released on  Comments of Department of Revenue on the First Discussion Paper released.  Hon’ble Finance Minister made some key announcements on  Constitution (115 th amendment ) Bill, 2011 introduced.  Report of Select Committee of the Parliament K.Vaitheeswaran - All Copyrights Reserved

21  The Empowered Committee has recommended a Dual GST which is based on the Federal Structure of our Constitution.  The Department of Revenue in its comments to the Discussion Paper has also endorsed Dual GST.  A Single GST is ideal but unlikely and the Constitutional Bill endorses dual GST.  Finance Minister has referred to Dual Rate – Dual GST for Goods and Dual GST for Services at a single rate K.Vaitheeswaran - All Copyrights Reserved

22  CGST would be levied by the Centre through a separate statute on all transactions of goods and services made for a consideration.  Consideration ?  Exceptions would be exempted goods and services, goods kept out of GST and transactions below prescribed threshold limits. K.Vaitheeswaran - All Copyrights Reserved

23  This would subsume the following:  Central Excise Duty  Additional Excise Duty  Additional Excise Duty on medicinal and toilet preparations.  Countervailing Duty  Additional Duty under Section 3(5) of the Customs Tariff Act.  Service Tax  Cesses  Surcharges K.Vaitheeswaran - All Copyrights Reserved

24  CGST would be a tax on all transactions of goods and services made for consideration.  It would be levied and collected by the Centre.  CGST would be levied across the value chain.  CGST rate  Single or Multiple rates K.Vaitheeswaran - All Copyrights Reserved

25  Currently effective excise duty is at the rate of 12.36% or 6.18% depending upon the commodity.  Currently services are taxed by the Central Government at 12.36%.  Assuming there are two rates of CGST, the exemptions could move to a lower rate and lower rates could move to higher rates  Assuming the CGST rate is 12.77%, the centre would be collecting 12.77% on goods and services as against the current rate of 12.36%. K.Vaitheeswaran - All Copyrights Reserved

26  Many exemptions are likely to be withdrawn.  Will 1.5 crore exemption becomes Rs.10 lakhs exemption?  Threshold?  Levy on entire supply chain as against only on manufacture.  Scope of services is likely to widen.  Revenue loss ? K.Vaitheeswaran - All Copyrights Reserved

27  Withdrawal of exemptions would mean new assessees.  Scaling down of SSI exemption from Rs.1.5 crores to Rs.10 lakhs would mean new assessees.  Levy on entire supply chain instead of only on manufacturers would mean more assessees. K.Vaitheeswaran - All Copyrights Reserved

28  Paradigm Shift from a levy based on manufacture to a levy based on supply.  Manufacture is very restricted in scope and has resulted in distortions.  For the first time supply would be the focus and hence great care is required in drafting the key provisions of the statute. K.Vaitheeswaran - All Copyrights Reserved

29  Impact on small industries.  Current unethical practices.  Administration of new assessees.  Political issues.  To illustrate a manufacturer with a turnover of Rs.1.5 crores would not have paid any excise duty whereas under CGST the liability would be Rs.15 lakhs assuming a 10% rate for the goods.  Credit of CGST may not be significant for absorption. K.Vaitheeswaran - All Copyrights Reserved

30  Excise law has exempted various items for different reasons.  2% concessional rate of duty without cenvat and 6% with cenvat through notifications.  To illustrate food is not fully taxed under excise law;  Windmills and tractors are exempt from excise duty.  On the other hand VAT is payable on all kinds of goods except fruits, vegetables, milk, etc.; windmills, tractors. K.Vaitheeswaran - All Copyrights Reserved

31  Whether all exemptions would be withdrawn ?  Whether excise duty exemption would be reviewed and the CGST exemption list would be aligned with the SGST exemption list?  99 items currently exempt under VAT would be exempt from both CGST and SGST.  Concept of ‘nil’ rate does not exist in VAT. K.Vaitheeswaran - All Copyrights Reserved

32  Cenvat credit  Stocks in the hands of wholesalers or distributors who have purchased from manufacturers.  Rates  Clarity on effective date. K.Vaitheeswaran - All Copyrights Reserved

33  Appellate mechanism  Audit  Role of range / LTU  Whether small assessees would be administered by the State on behalf of the Centre ? K.Vaitheeswaran - All Copyrights Reserved

34  SGST would be levied by the States through statute on all transactions of goods and services made for a consideration.  Exceptions would be exempted goods and services, goods kept out of GST and transactions below prescribed threshold limits. K.Vaitheeswaran - All Copyrights Reserved

35  Every State will have a SGST Statute.  Basic features of law such as chargeability, taxable event, measure, valuation, classification would be uniform across these Statutes as far as practicable.  State GST would be paid to the accounts of the respective State. K.Vaitheeswaran - All Copyrights Reserved

36  SGST would subsume the following:  VAT / Sales Tax  Entertainment Tax (could be levied by local bodies)  Luxury Tax  Taxes on lottery, betting and gambling  State cesses and Surcharges relatable to supply of goods and services  Octroi (could be levied by local bodies) K.Vaitheeswaran - All Copyrights Reserved

37  Some States have a concept of industrial inputs.  Pondy taxes industrial inputs at 1%.  No distinction between capital goods and inputs in Andhra Pradesh.  Kerala taxes gold at 5%.  Many states have increased the revenue neutral rate  Some states have levied additional taxes  Some states have restricted ITC on CST sales K.Vaitheeswaran - All Copyrights Reserved

38  Andhra Pradesh has increased VAT rate to 13.5% and increased rates significantly on ATF.  Punjab increased from 4% to 5% on 29 th January  Haryana has increased from 4% to 5%.  Tamil Nadu has increased from 4% to 5% and 12.5% to 14.5% w.e.f  Turnover taxes.  Complex forms. K.Vaitheeswaran - All Copyrights Reserved

39  States power to frame law and impose tax cannot be taken away.  Revenue compulsions.  Political largesse.  Size of the State.  Economic activity in the State.  Past legacy.  Elections. K.Vaitheeswaran - All Copyrights Reserved

40  Previous FM had requested that States should also levy SGST on goods at a two tier structure of 6% and 10% and tax services at 8%.  State rate at 13.91%?  SGST on services at 13.91% would increase the overall levy on services from 12% to 26.68%. (CGST + SGST)  Currently many products attract VAT at 12.5% to 14.5% which would mean a climb down to 13.91%. K.Vaitheeswaran - All Copyrights Reserved

41  A State like Goa is unhappy with the current VAT threshold limit of Rs.5 lakhs whereas SGST limit is at Rs.10 lakhs.  A State like Tamil Nadu has got the highest compliance levels and hence assessee base has not expanded due to VAT.  Even though services revenue would compensate States, not all States have fantastic service sector operations. K.Vaitheeswaran - All Copyrights Reserved

42  Constitutional amendments are required.  Draft legislation for CGST to be prepared.  Suitable model legislation for SGST to be prepared.  Rules and procedures for CGST and SGST to be prepared.  IGST legislation with Rules and procedures to be drafted. K.Vaitheeswaran - All Copyrights Reserved

43  A number of amendments are required to implement a proper framework for GST.  Centre needs the power to tax beyond manufacture and State needs the power to tax imports as well as services.  Amendments require 3/4 th majority of the Parliament and ratification through resolution by 50% of the States – Article 368(2)(c).  115 th Constitutional Amendment has been introduced and will have to be modified based on the recommendations of the Parliament Committee and the agreement with the States. K.Vaitheeswaran - All Copyrights Reserved

44  EC wants sales tax and central levy to continue on petroleum products (crude, motor spirit including aviation turbine fuel and HSD) and to keep the items out of GST.  Task Force makes a distinction between emission fuels and industrial fuels.  Constitutional amendment indicates that the petroleum products would be kept out of GST. K.Vaitheeswaran - All Copyrights Reserved

45  Alcoholic beverages to be kept out of GST. States can continue to levy sales tax / VAT and excise duty on these items.  Tobacco to be kept out of GST.  Impact on companies dealing with tobacco as well as other products. K.Vaitheeswaran - All Copyrights Reserved

46  CGST can be set off against CGST  SGST can be set off against SGST  CGST cannot be used for set off against SGST and vice versa. K.Vaitheeswaran - All Copyrights Reserved

47  Centre would levy IGST which would be CGST + SGST.  IGST would be levied on all inter-State transactions of taxable goods and services with appropriate provision for consignment or stock transfer of goods and services.  Inter-State dealer will pay IGST after adjusting available, IGST, CGST and SGST on his purchases. K.Vaitheeswaran - All Copyrights Reserved

48  The seller in State-A will pay the IGST to the Centre.  While paying IGST the seller will adjust against available credit of IGST, CGST and SGST.  State Government-A will have to transfer the credit of SGST used by the seller for payment of IGST to the Centre. K.Vaitheeswaran - All Copyrights Reserved

49  Buyer in State-B can avail credit of the IGST charged.  Buyer in State-B can use the IGST to discharge output tax liability in his own State.  Centre has to transfer credit of IGST used for payment of SGST to State Government-B. K.Vaitheeswaran - All Copyrights Reserved

50  Tamil Nadu seller selling to Karnataka buyer for Rs.1,00,000/-.  IGST payable assuming an 8% rate is Rs.8,000/-.  Rs.8,000/- can be paid by adjusting  Inter-State purchases (IGST) Rs.3,000/-  Local purchases (CGST) Rs.1,500/-  Local purchases (SGST) Rs.1,500/-  Since dealer has used SGST of Tamil Nadu to the extent of Rs.1,500/-, Tamil Nadu has to transfer Rs.1,500/- to Centre. K.Vaitheeswaran - All Copyrights Reserved

51  IGST of Rs.8,000/- is availed as credit by Karnataka buyer.  Karnataka dealer sells the goods at Rs.2,00,000/- attracting CGST of say Rs.16,000/- and SGST of Rs.16,000/-.  If IGST of Rs.8,000/- is used to pay the SGST then the Centre has to transfer Rs.8,000/- to Karnataka Government. K.Vaitheeswaran - All Copyrights Reserved

52  Transfers are only between Centre and State.  No transfer from one State to another State.  Process may be facilitated through a clearing house mechanism.  Every State would be both selling and purchasing State and therefore there would be netting of funds through the clearing house.  In terms of Article 269A as proposed, IGST would be levied and collected by the Government of India and such tax shall be apportioned between Union and States in the manner as may be prescribed by Parliament by law. K.Vaitheeswaran - All Copyrights Reserved

53  Supply of goods or services or both in the course of import into the territory of India shall be deemed to be IGST.  Parliament by law may formulate principles for determining when a supply of goods or of services or both takes place in the course of inter-State trade or commerce. K.Vaitheeswaran - All Copyrights Reserved

54  Uninterrupted ITC chain  No refund claim in exporting State as ITC is used up while paying tax.  Self-monitoring model.  Computerization limited to inter-State dealers and Governments.  Borders disappear due to seamless credit system.  Tax driven business distortions would disappear. K.Vaitheeswaran - All Copyrights Reserved

55  Biggest drawback in VAT is the concept of local purchases linked credit.  Tax cascade in the current systems resulting in higher prices – motor car.  Increase in cost of operating business due to creation of depots / warehouses / factories all over the country.  IGST credit would mean direct sales to dealers instead of stock transfer route. K.Vaitheeswaran - All Copyrights Reserved

56  Stock transfers would not disappear and consequently impact of IGST on transfers to branches / consignment agents located outside the State.  In stock transfers there is upfront outflow of IGST whereas the turn around time for sale could be higher.  If customer cannot take credit, IGST is prohibitive.  Assuming hospitals are not in GST, IGST rates charged would be extremely high.  Government as a buyer will have to pay more compared to the current rates. K.Vaitheeswaran - All Copyrights Reserved

57  Inter-unit movement  Job work transactions  History has shown CST Vs. Local Tax in the receiving State disputes.  IGST Vs. SGST (possibility of State insisting that SGST is applicable)  Whether CGST or IGST? (rate issue)  Significant challenge in drafting law for inter-State services. K.Vaitheeswaran - All Copyrights Reserved

58  Inter-State sale is defined in terms of Section 3 of the CST Act in respect of goods.  Sale should occasion the movement of goods from one State to another.  Jurisdiction to tax established through Section 4.  Litigation as to what is a CST Sale despite clear provisions, tangible items, physical movement and proof of movement. K.Vaitheeswaran - All Copyrights Reserved

59  Whether a sale is a CST sale or a local sale in the other State is still the matter of dispute even after nearly 55 years of existence.  Reasons for disputes  New law would be a challenge since the principles will have to cover both goods as well as service tax and also be linked with supply as against sale of goods / provision of service. K.Vaitheeswaran - All Copyrights Reserved

60  Goods and services tax would mean any tax on supply of goods or services or both except taxes on the supply of petroleum products and alcoholic liquor.  No GST on supply of petroleum and liquor.  Centre to retain power to levy excise duty on petroleum products and tobacco?  State to retain power to levy tax on the sale of alcohol and petroleum products? K.Vaitheeswaran - All Copyrights Reserved

61  CST law by Parliament and revenues assigned to the State.  CST law is a tax on inter-State sale of goods.  IGST law would be a tax by Parliament on supply of goods or services or both. K.Vaitheeswaran - All Copyrights Reserved

62  The rate of IGST for goods can change depending upon SGST if the SGST rates are different.  To illustrate, if mobile phones attract CGST of 6% and State-A imposes SGST of 10% and State-B imposes SGST of 6% then (a)IGST is based on SGST origin rates then 16% if goods are sold from State-A to State-Z. (b)IGST based on SGST origin then 12% if goods are sold from State-B to State-Z. K.Vaitheeswaran - All Copyrights Reserved

63  Differing SGST rates can be an issue.  Whether to adopt SGST origin rate or SGST destination rate needs to be spelt out in the IGST legislation  What happens if SGST is exempt in one State but taxable in another State ?  Since IGST is levied by the Centre, SGST linked with SGST destination rates can cause chaos.  Challenging but relevant solution – SGST rates should not differ. K.Vaitheeswaran - All Copyrights Reserved

64  If a supply of service is in the nature of inter- State supply – IGST will apply.  If supply of service is local then CGST + SGST will apply.  What is the line of the distinction between inter-State service and intra-service?  When there is so much of disputes on goods, services are not going to be easy. K.Vaitheeswaran - All Copyrights Reserved

65  Both CGST and SGST would be levied on import of Goods and Services into the country.  Tax would be based on destination principle.  Tax revenue in the case of SGST will accrue to the State where the imported goods and services are consumed.  Full set off of GST on imports will be available. K.Vaitheeswaran - All Copyrights Reserved

66  Taxation of services can be a big challenge in GST system.  If only select services are taxed then the scope and ambit and coverage becomes an issue and the intended objective of revenue and growth in GDP may not fully materialize.  If all services are taxed it is very difficult for somebody to understand whether he is providing service or not for the purpose of taxation.

67  Transportation of goods by road  Non-A/c Rail – Passengers  Taxis, Autos, Public transport  Health care  Doctors  Film Industry K.Vaitheeswaran - All Copyrights Reserved

68  What would constitute an inter-State service would be a challenge.  Very difficult to determine inter-State character when services are involved.  head office in Mumbai executes an agreement with a client having office in Mumbai for providing services through out the country.  Which SGST is applicable ?  Assuming client office in Delhi, whether IGST ?

69  Treatment of reimbursements, incentives.  Professional based in Bangalore providing audit services for a client in Delhi.  If IGST is determined based on invoice reference, acceptability by States has to be ensured.

70  If every State seeks to tax services then compliance would be required in multiple States even though the operations would be very minor in that State.  Unlike a manufacturer the small service provider does not have a very big finance team or employees all over the country with expert knowledge on taxes.  Compliance issues.  Increase in cost of compliance.

71  Jewellery exempted from duty.  Attempted levy on branded jewellery in  Branded jewellery completely exempted in  Another round of attempted levy from  VAT on jewellery.  CGST at 13.91% ?  SGST at 12.77?  Special GST rate for Jewellery

72  GST Council to make recommendations to the Union and States (a)taxes, cesses, surcharges levied by the Centre, States and local bodies which may be subsumed in GST. (b)Goods and Services that may be subjected to tax or exempted from tax. (c)Threshold limits (d)Rates of goods and services tax. (e)Any other matter relating to GST as the Council may decide. K.Vaitheeswaran - All Copyrights Reserved

73  Authority to be created by law of Parliament.  Complaint by a State Government or the GoI arising out of a deviation from any recommendation of the Council resulting in loss of revenue to State / Centre or affecting harmonized structure of GST.  Chairperson – A person who has been a Judge of the Supreme Court or CJ of High Court to be appointed by President on the recommendation of Chief Justice of India.  Two other members of 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 GST Council.  Power to pass suitable orders including interim orders. K.Vaitheeswaran - All Copyrights Reserved

74  States power to frame law and impose tax cannot be taken away.  Federal structure has to be respected.  Revenue compulsions.  Size of the State.  Economic activity in the State.  Past legacy.  Elections. K.Vaitheeswaran - All Copyrights Reserved

75  Petroleum Products  Threshold – States want 10 lakhs whereas Centre wants 25 lakhs  Rate – Sub-committee has suggested SGST at 13.91% and CGST at 12.77%  Compensation – Constitution Provisions?

76  Computerization  Administration of new assessees  Exemption limits  Rate of tax – balancing concerns  Initial inflation  Consensus  Availability of time K.Vaitheeswaran - All Copyrights Reserved

77  Awareness  Computerization and accounting records  Availability of time  Long term contracts  Investment decisions  Cost of compliance K.Vaitheeswaran - All Copyrights Reserved

78  April 1 st, 2016?  Rate of GST  Industry preparedness  Existing business structures and compatibility with GST.  Training both for Industry and Government  Learning and the art of unlearning K.Vaitheeswaran - All Copyrights Reserved

79 K.VAITHEESWARAN ADVOCATE & TAX CONSULTANT Flat No.3, First Floor, No.9, Thanikachalam Road, T. Nagar, Chennai , India Tel.: / , Front Wing, House of Lords, 15/16, St. Marks Road, Bangalore – , India Tel : / Mobile: s : Web:


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