Minutes of the 2nd GST Council Meeting held on 30 September 2016 - GST - 2nd GST Council Meeting

Minutes of the 2nd GST Council Meeting (30 September 2016) The second meeting of the GST Council (hereinafter referred to as the Council ) was held in the Parliament House Annexe, New Delhi on 30 September 2016 under the Chairpersonship of the Hon ble Union Finance Minister, Shri Arun Jaitley. The list of the Hon ble Members of the GST Council who attended the meeting is at Annexure 1 . The list of officers of the Centre and the States who attended the meeting is at Annexure 2 . 2. In his opening remarks, the Chairperson of the Council welcomed all the members and enumerated the agenda items for the second meeting of the Council. 3. The following three agenda items were taken up for consideration: 1. Approval of the Draft Minutes of the 1st GST Council Meeting along with the Draft Rules for Conduct of Business a.Draft Minutes of the 1st GST Council Meeting b.Draft Rules of Procedures and Conduct of Business in the GST Council 2. Draft GST Rules on Registration, Payment, Return, Refund and Invoice, Debit/Credit Notes 3. Treatment of the existing tax incentive schemes of the Central and State Governments Discussion on Agenda Items Agenda Item 1: Approval of the Draft Minutes of the 1st GST Council Meeting (22-23 September 2016) along with the Draft Rules of Procedure and Conduct of Business in the GST Council 4. The Hon ble Minister from Punjab stated that in paragraph 37 (ii) of the draft minutes of the 1st GST Council Meeting (hereinafter called the draft minutes ), it should be amplified that revenue to be compensated shall, in addition to taxes, also include cesses and Input Tax Credit (ITC) reversals and adjustments. On the first issue, after discussion, it was agreed that in paragraph 37 (ii), the word cesses shall be added. 5. In respect of the second issue (ITC reversals and adjustments), the Hon ble Minister from Punjab stated that ITC reversals accounted for an additional revenue of Rs. 4,000 crore in his State. The Secretary to the Council observed that it was not desirable to subsume the amount related to ITC reversal for calculation of compensation as it was a distortion in the taxation system and only five States had such a provision in place. The Chairperson observed that if compensation was to be paid for ITC reversal, the Centre s rate of tax would go up and this would imply that taxpayers of all States would be paying extra to compensate five States. He further observed that as the issue regarding compensation for ITC reversal was not discussed in the first meeting of the Council, it would be inappropriate to insert it at the stage of confirmation of its Minutes. However, it was agreed that this issue could be further examined by a committee of officers. 6. The Hon ble Minister from Uttar Pradesh stated that more clarity was needed as to what constituted revenue . The Hon ble Minister from Jammu and Kashmir also stated that what constituted revenue for the base year needed to be spelt out clearly. The Chairperson observed that this issue could also be examined by the same committee of officers who would be examining the issue of compensation to be paid for ITC reversal. 7. The Hon ble Minister from Tamil Nadu stated that in paragraph 37 (ii), revenue to be compensated for Central Sales Tax (CST) should be calculated at the rate of 4%. The Secretary to the Council stated that compensation could not be calculated on a presumptive basis. The need for compensation for reduction in CST was felt in the initial years only which was fulfilled by the Central Government as per the promise given. The Hon ble Minister from Tamil Nadu observed that CST was reduced to 2% at the Centre s behest and therefore, calculation was not presumptive. The Secretary to the Council stated that in the last meeting, there was no agreement to count CST at the rate of 4% for computing compensation. It was agreed that this need not be incorporated in the Minutes of the 1 st Meeting of the Council. 8. The Hon ble Minister from Jammu and Kashmir stated that in paragraph 37 (ii) of the Minutes, the revenue to be compensated should cover exemptions and duties. The Secretary to the Council stated that these could not be included for compensation as the population of the whole of India should not be expected to bear the burden for exemptions given by different states. The Hon ble Minister from Assam stated that the formula for compensation under V AT did not include exemptions as part of revenue and the same methodology should be adopted for GST. The Hon ble Minister from Bihar also opposed the idea of putting exemptions in the compensation formula. The Chairperson reiterated that additional issues being discussed today could not be made part of the Minutes of an earlier meeting. Such issues could be flagged for discussion in a later meeting. 9. The Hon ble Minister from Odisha stated that in paragraph 22, correction should be made in the last sentence to the effect that the best 3 out of 5 years would be taken into account to ascertain growth rate. The Hon ble Minister from Rajasthan observed that the same correction should be carried out in the last sentence of paragraph 21. 10. Considerable discussion took place in respect of the Minutes relating to Agenda 5 of the 1st Meeting of the GST Council (Provisions for Cross-Empowerment). The Hon ble Minister from Odisha stated that paragraph 47 (vi) (relating to Information-based enforcement powers) should be deleted as at point (ii) of the same paragraph, it had been mentioned that for traders/manufacturers of goods with a turnover above Rs. 1.5 crore, a committee of Central and State Government officials should suitably modify the cross-empowerment model presented in the meeting. The work of the committee should cover the entire gamut of activities and functions to be performed from registration, scrutiny, etc. to enforcement. This committee should discuss how information-based enforcement powers should be exercised so that there was no parallel exercise of powers resulting in confusion and possible harassment. 11. The Hon ble Minister from Tamil Nadu stated that there was no agreement as recorded in paragraph 47 (iii) ( All existing registered service providers irrespective of the value of turnover, for the present, shall continue to be administered by the Central tax administration ). He also expressed his strong reservation in respect of the cap of three years mentioned in paragraph 47. The Hon ble Minister from Kerala also supported the view of the Hon ble Minister from Tamil Nadu and stated that the Centre and the States should have concurrent power to administer Service Tax payers having turnover above Rs. 1.5 Crores. He also observed that States were currently handling certain Services as deemed sale of goods (like works contract, restaurants, etc.) and this could not now fall in the exclusive domain of the Central administration. He also mentioned that there was a need to provide a broad timeframe by when Service Tax payers with turnover below Rs. 1.5 crore would be administered by the States alone. The Hon ble Ministers from Uttarakhand and Uttar Pradesh also stated that States should be empowered to collect Service Tax. The Hon ble Minister from Punjab stated that an officers committee could look into the issue of how taxpayers dealing in both goods and services, having turnover below Rs. 1.5 crore should be administered. 12. The Hon ble Minister from Rajasthan stated that there should be clarity regarding administrative arrangements for taxpayers making composite supplies. The Secretary to the Council clarified that the collection of tax on supply of services would be for both States and the Centre. Audit was proposed to be limited to 5% of the taxpayers on the basis of risk parameters. The issue decided was that the Centre would take up such audit for suppliers of services. He suggested that this issue should not be reopened. 13. The Chairperson recalled the discussions that took place in the 1st Meeting of the Council. He stated that the compromise arrived at was that in respect of goods, taxpayers with a turnover below Rs. 1.5 crore would continue to be administered by the States, as was the practice currently and for those with turnover above Rs. 1.5 crore, there would be concurrent jurisdiction of the Centre and States. In respect of Service Tax, he had stated that 11 lakh current assessees of Service Tax would continue to be administered by the Centre and this clearly implied that no division was proposed on the basis of Rs. 1.5 crore turnover. He also recalled that it was agreed that new Service Tax registrants would be allocated between the Centre and the State administrations on the basis of a protocol to be devised by officers and that arrangements shall be made to train State Government officials on Service Tax issues. He also recalled that he had mentioned that machinery of the Centre and the States needed to be used optimally for administration of GST. He observed that there were five limbs to the compromise decision on the subject of single interface through cross-empowerment and at this stage, only one limb of the decision could not be reopened; rather, the whole issue would get reopened. He observed that the time period of three years was not specifically discussed and if members so desired, it could be removed. 14. The Hon ble Minister from West Bengal recalled the spirit of the House in the meetings of the Empowered Committee of State Finance Ministers in Kolkata and Delhi to allow the States to administer all taxpayers below the threshold of Rs. 1.5 crore and that the formulation agreed to in the 1 st Meeting of the Council was in a spirit of cooperation. However, this cooperation was limited to the Centre administering the Service Tax assesses whose turnover was below Rs. 1.5 crore and in his understanding, the agreement was that Service Tax assessees with turnover above Rs. 1.5 crore would be administered jointly by the Centre and the States. The Hon ble Minister from Chhattisgarh stated that in the Empowered Committee, the decision regarding no dual control on small taxpayers was only to protect small traders in goods and it was not meant for services and therefore, it would not be fair to raise the issue of Services at this stage. The Hon ble Minister from Meghalaya stated that the States should administer taxpayers with turnover below Rs. 1.5 crore and those above Rs. 1.5 crore should be shared between the Centre and the States. He also stated that there was hardly any presence of Central Government officials in .his State. He suggested a time-frame to be fixed by when administration of taxpayers with turnover below Rs. 1.5 crore would be transferred to the States. 15. The Hon ble Ministers from Andhra Pradesh and Bihar stated that their understanding of the decision taken in the 1st Meeting of the Council was that Service Tax assessees with turnover below Rs. 1.5 crore would be administered by the States. The Chairperson observed that there appeared to be different interpretations of the decision taken in the last meeting on this subject. The Hon ble Minister from Haryana stated that in the last meeting, it was conceded that the Central Government would fully deal with Service Tax assesses and that the House should not go back on this decision. The Hon ble Minister from Assam also supported this view. He pointed out that for the first five years of implementation of GST, the Centre had agreed to give full compensation to the States for any loss of revenue and in order to give comfort to the Central Government, it should be allowed to handle Service Tax assessees exclusively for the first five years. The Hon ble Chief Minister of Puducherry also recalled that for Services, it was decided that all 11 lakh existing Service Tax assessees would be administered by the Central Government. The Secretary to the Council brought to the notice of the House that big service providers in sectors such as telecom, banking, information technology, etc. had been representing that they should have a single registration and if that was not possible, they could at least be given the second best comfort of being audited by only the Central administration for initial years. He pointed out that contribution of Services to the Gross Domestic Product (GDP) of the country was 56% and the administrative structure should be such that it does not affect the growth of the Services sector and thus, of the GDP. 16. The Hon ble Minister from Tamil Nadu stated that transition period should not be for 3 years and that it should be limited to 6 months. The Hon ble Minister from Uttar Pradesh also supported this. The Hon ble Minister from Punjab suggested reducing the transition period to one year. The Hon ble Minister from Telangana observed that starting from now, the States would complete 6 months of training in Services by 1st April 2017 and therefore, Service Tax payers could be brought under the jurisdiction of the States. The Hon ble Minister from Jammu and Kashmir suggested that modalities on how taxpayers would be facilitated could be reviewed after one year. The Chairperson suggested that there could be a provision for annual review of the arrangement agreed upon under paragraph 47 of the draft Minutes. The Hon ble Minister from Tamil Nadu also expressed unease at the idea of putting only one organization in charge of administering Service Tax and that this would create a vested interest to protect turf. 17. In order to find a solution to this issue, the Hon ble Ministers from Punjab and Gujarat suggested to vertically divide the taxpayers between the Centre and States irrespective of any turnover threshold. The Hon ble Minister from Assam stated that such an arrangement would create difficulty for small traders. The Hon ble Ministers from Bihar and Kerala stated that in order to consider this new suggestion, it should be circulated as a separate agenda point. 18. Due to persistent differences, the Council decided to defer the approval of the minutes of the meeting in respect to agenda item 5 of the 1st meeting of the Council. It was suggested and agreed that a committee of officers would examine the issue further and the matter could then be taken up in the next Council meeting. 19. The sub-agenda (b) of the agenda item 1, i.e. Draft Rules of Procedures and Conduct of Business in the GST Council with the revisions suggested in the last meeting of the Council was taken up and the Council approved the revised version unanimously. 20. The Hon ble Minister from Jammu and Kashmir suggested that there should be some State-level officials associated in drafting the minutes of the Council meetings. The Secretary to the Council stated that State-level officials could come on deputation to the GST Council Secretariat. The Chairperson stated that at least one officer from the States could be taken to the GST Council Secretariat on deputation as early as possible. 21. In respect of Agenda Item 1, the Council decided as follows: (i) Adoption of Draft Minutes from Paragraph 1 to 38 and Paragraphs 48-49 of the 1 st Meeting of the Council held on 22nd and 23rd September with the following amendments- a. Sub-paragraph 37(ii) to be replaced by Revenue to be compensated shall consist of all taxes (including cesses) levied by the States and which are now proposed to be subsumed in GST . b. The last line of paragraph 21 to be replaced by The Hon ble Minister from Rajasthan was of the view that as the compensation was for 5 years, the average growth rate of 5 years or the best 3 out of 5 years should be taken to ascertain the growth rate . c. The last line of paragraph 22 to be replaced by The Hon ble Minister from Odisha suggested that the best 3 out of 5 years be taken to ascertain growth rate and compensation payment be made monthly and adjusted at the end of the year on the basis of CAG-audited figures and also that the base year could be 2015-16 . (ii) In relation to Agenda Item no. 5 of the first meeting, namely Provision for cross-empowerment to ensure single interface under GST , paragraph 39 to 46 where the discussions have been recorded was approved. In paragraph 47, the last sentence of the main body of the paragraph shall be replace by the following sentence: Thereafter, the following modalities for single interface were discussed but discussions remained inconclusive. (iii) Adoption of modified Draft Rules of Procedures and Conduct of Business in the GST Council as contained in the agenda notes. (iv) Examination of the following issues by a Committee of Officers: a. Definition of the term Revenue for determining compensation to the States; b. Whether input tax credit (ITC) reversals by a State would be part of definition of Revenue ; c. Modalities for allocating jurisdiction between the Central and State administrations in respect of taxpayers covered within the ambit of deemed sale of goods, in particular, works contractors and restauranteurs; d. Modalities for allocating jurisdiction between the Central and State administrations in respect of taxpayers who are currently registered simultaneously under VAT and Service Tax; e. Modalities for exercising information-based enforcement action. Agenda Item 2: Draft GST Rules on Registration, Payment, Return, Refund and Invoice, Debit/Credit Notes 22. In respect of agenda item 2, the Hon ble Deputy Chief Minister of Arunachal Pradesh expressed some concern in regard to the draft rules on registration. He mentioned that registration under GST was proposed to be PAN-based which would be difficult to comply with in his State as no Income Tax was payable in his State (as also in Nagaland). He further mentioned that in GST, in B2C (Business to Consumer) transactions, taxes would flow to the consuming states. However, as his State did not have big distributors or high-end retailers, people from his State bought goods from Assam, West Bengal, etc. and a mechanism was required to be devised to ensure that taxes paid for such purchases flowed to Arunachal, Pradesh. The Chairperson observed that this issue could be taken up for clarification in the next meeting of the Council. 23. The Members expressed their approval of the draft Rules relating to Registration, Payment, Return, Refund and Invoice, Debit/Credit Notes. The Secretary to the Council suggested that the Draft Rules may be approved with an understanding that minor changes may be permitted, if required, due to suggestions from the stakeholders. He suggested that this could be done with the approval of the Chairperson and the same could be circulated to all the States. 24. In respect of Agenda Item 2, the Council approved the Draft GST Rules on Registration, Payment, Return, Refund and Invoice, Debit/Credit Notes with the understanding that minor changes may be permitted with the approval of the Chairperson, if required, due to suggestions from the stakeholders or from the Law Department. Agenda Item 3: Treatment of the existing tax incentive schemes of the Central and State Governments 25. The Secretary to the Council explained that the Central and State governments had given various incentives of Central Excise and Value Added Tax (VAT) and Central Sales Tax (CST). He pointed out that in the GST regime, such incentives could not be continued as supplies would need to be made on payment of tax in order to permit flow of tax to the destination state. Therefore, a decision would need to be arrived at regarding the treatment of such tax incentive schemes under the GST regime. He observed that one option could be to grandfather such schemes and provide for a budgetary apportionment in the State and the Central budgets for reimbursing the tax paid to those units which enjoyed tax exemption up to a specified period. However, while grandfathering any such scheme, it would need to be kept in mind that unlike VAT and the CST which were origin-based taxes, GST was a destination-based tax and an unconditional reimbursement scheme could lead to double outflow for the origin-state - one by way of transfer of tax to the destination State and the other by way of reimbursement to the supplier. Therefore, the States would need to be careful while devising any reimbursement scheme and care could be taken that such reimbursement was limited for supplies made within the State. 26. The Hon ble Deputy Chief Minister of Gujarat alluded to examine possible legal complications. The Secretary to the Council pointed out that the agenda note contained certain judgements of the Hon ble Supreme Court as per which the principle of promissory estoppel would not apply in a case where there was a supervening public equity. 27. The Hon ble Minister from Tamil Nadu stated that the Centre should not give budgetary support to only few States that were classified as Special Category States for the tax incentive schemes maintained by them. The Hon ble Minister from Assam strongly objected to the line of argument presented by the Hon ble Minister from Tamil Nadu and stated that small states should get help from the Centre. He pointed out that for the last 70 years, oil and natural gas were being taken out of Assam which was used for the benefit of all States. He pointed out that for small States to exist, the Centre should help them; otherwise smaller States might wither away. The Chairperson stated that no compensation was to be paid by the Centre to any State for reimbursements relating to tax incentive schemes and that States would need to make their own budgetary provisions for the same. 28. The Hon ble Minister from Uttarakhand stated that the Government of India had given an area-based exemption for 10 years and that such exemptions were to continue up to 2020. She observed that the Centre must reimburse such units for the Central taxes as jobs of more than one lakh workers were at stake. The Hon ble Minister from Jammu and Kashmir stated that his State was in a similar situation as Uttarakhand. The Chairperson observed that once incentive schemes were withdrawn, the taxes paid would be accounted for in the Consolidated Fund of India and 42% of the amount would be devolved to the States. The Centre, therefore, could be expected to only reimburse the units out ofthe remaining 58% of the fund which was not part of the devolution and the States would also need to correspondingly reimburse such units out of the share of revenue received through devolution. 29. The Council approved the following- (i) All entities exempted from payment of indirect tax under any existing tax incentive scheme shall pay tax in the GST regime. (ii) The decision to continue with any incentive given to specific industries in existing industrial policies of States or through any schemes of the Central Government, shall be with the concerned State or Central Government. (iii) In case the State or Central Government decides to continue any existg exemption/incentive/deferral scheme, then it shall be administered by way of a reimbursement mechanism through the budgetary route, the modalities for which shall be worked out by the concerned State/Centre. 30. In conclusion, after discussing with the members, the Chairperson stated that the next meeting of the Council would be held on 18th, 19th and 20th October 2016. The main agenda for that meeting would be the rate structure under GST along with other residual agenda items from the previous meeting. 31. The meeting ended with a vote of thanks to the Chair. (Arun Jaitley) Chairperson, GST Council