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Minutes of the 3rd GST Council Meeting held on 18-19 October 2016

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..... ates for possible revenue loss (i) Definition of the term Revenue (outstanding issue from 2nd GSTC Meeting) (ii) The formula for calculating the projected growth rate for compensation 3. Provision for Cross-Empowerment to ensure Single Interface under GST (outstanding issue from 1st and 2nd GSTC Meeting) - (i) Distribution of taxpayers between States and Centre under GST regime (ii) Modalities for exercising information based enforcement action (iii) Periodicity of review of the distribution 4. Finalization of the bands of tax rates under GST Regime 5. Delegation of powers to the Chairman, GST Council to constitute Technical Committees of officers 6. Date of the next meeting of the GST Council 7. Any other Agenda item with the permission of the Hon'ble Chairperson Discussion on Agenda Items Agenda Item 1: Confirmation of the Minutes of the 2nd GST Council Meeting held on 30th September, 2016 4. The members suggested the following amendments to the draft minutes of the 2nd meeting of the Council- i. The Hon'ble Minister from Maharashtra stated that in paragraph 29 (iii), a reference also needed to be made to deferral schemes, .....

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..... mmittee, he had called a meeting of state government officers from all States who were willing to participate on 8 October 2016 and had discussed the relevant issues threadbare. vi. The Hon'ble Minister from Tamil Nadu suggested that the last sentence in paragraph 7 be deleted, which read as follows: It was agreed that this need not be incorporated in the Minutes of the 1st Meeting of the Council. The Secretary to the Council clarified that this sentence only recorded that as there was no agreement to count Central Sales Tax (CST) at the rate of 4% for computing compensation, it was agreed not to incorporate it in the minutes of the 1st meeting of the Council. After this clarification, it was agreed not to delete the sentence. vii. The Hon'ble Minister from West Bengal stated that in the 4th line of paragraph 14, the word 'compromise' should be replaced with the word 'cooperation' and in the 5th line, the expression 93% of' should be deleted. It was agreed to make these changes. viii. The Officer from Uttarakhand suggested deleting the last sentence of paragraph 28 which read as follows: The Centre, therefore, could be expected to only reimb .....

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..... amely - i. Definition of the term Revenue (outstanding issue from 2nd GSTC Meeting). ll. The formula for calculating the projected growth rate for compensation. Shri Udai Singh Kumawat, Joint Secretary, Department of Revenue made a presentation on both the above issues. The first issue considered was whether Input Tax Credit (IT C) reversals should be included in the definition of the term 'Revenue'. The Council was informed that in the meeting of State Government Officers on 8 October 2016 under the Chairpersonship of the Revenue Secretary, a broad consensus was arrived at to include ITC reversals in the definition of revenue subsumed for the calculation of compensation. The Hon'ble Chairperson observed that as a broad consensus was reached at the Officers' level, the same may be adopted in the Council. It was agreed accordingly. It was further agreed that some revenues that did not go to the Consolidated Fund of the States but were directly devolved to 'mandi' or municipalities would also be included in the definition of 'revenue subsumed' if these were collected under the authority of Entries 52, 54, 55 and 62 of List II of Schedule 7 .....

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..... removal of Local Body Tax from 1st August 2015 at the instance of the Hon'ble Prime Minister of India. The action was in consonance with GST. As the State compensated the revenue to the Local bodies, the amount of compensation paid should be considered for the purpose of revenue collected by the State for year 2015-16. Similarly, his State stood to lose ₹ 700 crores due to abolition of Sugarcane Purchase Tax. He stated that his State should not suffer any loss on this count and taxes on account of octroi, Local Body Tax and Sugarcane Purchase Tax should be included in the definition of revenue. 11. The Hon'ble Deputy Chief Minister of Gujarat stated that in the Empowered Committee meeting of the Finance Ministers of the States at Bhubaneswar in 2013, it was decided that Government of India would give compensation to States for loss of CST for delayed implementation of GST. The loss of revenue on account of CST was to the tune of ₹ 10,000 to ₹ 12,000 crores. The Hon'ble Minister from Bihar stated that consuming States should not bear the burden of CST compensation. The Hon'ble Deputy Chief Minister of Gujarat responded that this was not a subsid .....

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..... ra supported the suggestion of the Hon'ble Minister from Chhattisgarh that revenue accruing from matters pending in the High Courts or Supreme Court should be counted towards revenue for the year in which the dispute arose. He also suggested that the definition of revenue should be gross collection of revenue, i.e., without taking into account the refund of taxes made. It was pointed out that in the base year (i.e. 2015-16), refund amount would be high because of differential rate of VAT (12.5%) and of CST (2%). He also pointed out that Maharashtra accounted for 21% of the share of manufacturing in the country and once exemption/deferral schemes were gone, the revenue accruing to the States would become high and hence, the compensation figure would go down. He suggested the following definition of revenue for the purpose of Goods and Services Tax (Compensation for Loss of Revenue) Bill, 2016 - Revenue collected for a State shall mean all gross revenues subsumed on account of amendments to entries or as the case may be deletion of entries, made in the State list by the Constitution (One hundred and first amendment) Act, 2016 and revenue collected by the State under any Act pass .....

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..... e rate of 4% for CST for the purpose of compensation. He also suggested that VA T refund on purchases by diplomatic consulates should also be added to the definition of revenue. The Hon'ble Minister from Jharkhand supported the view that CST at the rate of 4% should be taken for the definition of revenue. The Hon'ble Minister from Karnataka supported the demand for giving CST compensation till the implementation of GST. The Hon'ble Minister from Rajasthan also supported this demand. 17. The Hon'ble Chairperson observed that if the pre-existing exemptions were to be included in the definition of revenue, this principle would apply to the revenues of the Central Government too and this would lead to an incongruous situation. The Hon'ble Ministers from Jammu Kashmir and Tamil Nadu suggested that the Central Government exemptions on indirect taxes (except Customs) should be added in the calculation of revenue base for compensation. The Hon'ble Minister from Tamil Nadu added that all the exemptions taken together would not add to more than Rs. one lakh crores to the projected collection of GST. The Hon'ble Minister from U.P. observed that the .figure wou .....

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..... rovisioning for an additional amount of ₹ 56,000 crores towards compensation and this would lead to a higher tax rate in GST than the presently proposed 6%, 12%, 18% and 26%. He also pointed out that it would not be correct to infer that losses were continuing due to CST at 2% because the State Governments had used other means to compensate for such reduction in revenue like ITC reversals on stock transfers. He further pointed out that on the subject of counting tax exemptions for industries in the definition of revenue, it was decided that the cost of 'grand fathering' exemption schemes could not be borne by the Government of India and it would also be discriminatory towards those States that operated a reimbursement scheme rather than an exemption scheme. Many consuming States had also not given any incentive to industries, and it would not be fair that the cost of incentives given by some States should be borne by taxpayers of all States. 19. The Hon'ble Chairperson stated that in order to arrive at the taxation rate for 2017-18, the actual revenue earned by the States and the Central Government in 2015-16 should be taken as the basis as both have run their .....

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..... should also be considered for this benefit along with the Special Category States. The Hon'ble Chairperson stated that this could be discussed separately. 21. In view of the above discussion, the Council unanimously agreed that for the eleven Special Category States referred to in Article 279A of the Constitution, the revenue foregone on account of exemption of taxes granted by States shall be counted towards the definition of revenue for the base year 2015-16. 22. On the issue of including other elements in the definition of 'revenue' namely, CST at the rate of 4%, gross collection of taxes and revenue receivable on account of disputes pending in Courts, the Hon'ble Chairperson pointed out that Clause 18 of the Constitution (One hundred and first Amendment) Act, 2016 provided that the Parliament shall provide for compensation to the States for loss of revenue arising on account of implementation of GST for a period of five years. The spirit of the amendment was to look at the actual collection of revenue and not to inflate the same as this would lead to additional taxation burden on the common man. He also stated that there was no sovereign commitment to pa .....

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..... In the discussion that followed, the Hon'ble Minister from Maharashtra suggested to take the projected growth rate of a State on the basis of the average growth rate of the States for five years preceding the base year or the nominal GDP growth rate, whichever was higher. The Hon'ble Minister from Tamil Nadu observed that the options regarding outliers and best 3 out of 5 years were quite close and therefore, the latter should not be rejected. He also suggested to keep the minimum growth rate at 12%. The Hon'ble Minister from Kerala observed that the proposed formula of nominal GDP growth rate of the country was not acceptable as revenue outcome of GDP growth rate was based on efficiency of collection. He supported the proposal of the Hon'ble Minister from Tamil Nadu. The Hon'ble Minister from Jammu Kashmir observed that in calculation of GDP, the basket of goods deflated had several errors and therefore, GDP growth should not be considered for projected growth rate. 27. The Hon'ble Chairperson stated that the period subsequent to the implementation of VAT, i.e. 2007-09, was a boom period marked by high growth and high inflation. GDP grew at 9% and tax .....

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..... rs would be a better criterion. The Hon'ble Minister from Telangana pointed out that for his State, the growth figures would only be available for the years 2015-16 and 2016-17. 30. The Hon'ble Chief Minister of Puducherry observed that all states had agreed to take the average of the best 3 out of the preceding 5 years growth rate. The Hon 'ble Chairperson stated that if the option of average of the best 3 out of the preceding 5 years growth rate was taken, the revenue growth rate would range between 10%-18%. He observed that a consistent 18% growth rate was not a realistic figure. The average all-India growth rate during the last 3 years was 10.6% which was closer to reality. He further pointed out that the average growth rate of the past 5 years was 14.2% and the projected nominal GDP growth rate in the next 5 years was 12%-13%. If the growth rate was considered on the basis of removing 2 outliers and taking the remaining 3 years, it worked out to 13% which would be burdensome for the Central Government but would still be bearable. 31. The Hon 'ble Minister from Uttar Pradesh suggested to adopt a secular rate of 14%-15%. The Hon'ble Minister from lharkh .....

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..... rs that GST was to be implemented in the next few months. He added that if consensus could not be arrived at, then the country could miss the deadline of 1 April 2017 for rollout of GST, but under no circumstances could the deadline of 16 September 2017 be breached. So he exhorted that the House should work in a spirit of statesmanship and decide the issues after comprehensive discussion and by avoiding voting. Keeping the above spirit in mind, the Hon'ble Chairperson suggested to calculate revenue for the base year 2015-16 at the actual rate of 2% for CST and not a notional rate of 4% and to adopt a fixed growth rate of 13% or to take the average of 3 years growth rate out of the previous 5 years after removing the 2 outliers, i.e. the highest and the lowest growth rates during these 5 years. The Hon'ble Minister from Kerala expressed his support for calculating revenue at the rate of 2% for CST but for the fixed growth rate, he suggested that the rate be 14%. The Hon'ble Minister from Assam also supported this suggestion. The Hon'ble Minister from Gujarat presented 2 options - first to calculate CST revenue at the rate of 4% and a 13% fixed annual growth rate or t .....

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..... Duty; b. Service Tax; c. Countervailing Duty (CVD); d. Special Additional Duty of Customs(SAD); e. Cesses and surcharges in so far as they relate to supply of goods and services subsumed under GST. State taxes subsumed under GST a. VAT/SalesTax; b. Central Sales Tax (levied by the Centre and collected by the States); c. Entry tax (all forms); d. Taxes on luxury, entertainments, lottery, betting and gambling; e. Taxes on advertisements; f. State cesses and surcharges in so far as they relate to supply of goods and services 36. In the presentation, it was highlighted that the broad consideration kept in view while working out the rate structure was: (i) Present tax incidence on goods and services in the country; (ii) Need to protect present tax revenues of Centre and States; (iii) Inflation impact of proposed GST Rate structure; (iv) Mode of raising resources for payment of Compensation. It was pointed out that the present tax incidence of Central and State taxes was as follows- i. 42.3% of the Centre's Tax Base and 64.6% of the States' Tax Base was taxed at less than 6% (Lower Rate) ii. 53% of the Centre's Tax Base and 33.3 .....

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..... ected revenue requirement of₹ 8.82 lakh crores which did not include compensation requirements. In this regard, it was clarified that Table 11 of the agenda note was revised through a corrigendum as the original figure of expected tax collection under GST indicated as ₹ 8.72 lakh crores was due to a mistaken calculation for Standard Rate 2 at the rate of 20% instead of 18%. The revised Table 11 of the note for agenda item 4 reads as below- Table 11(R1): Estimated revenue collection with proposed GST rate structure (in Lakh crore Rs.) Rate Rate of tax Tax base Tax collected % of Tax Base (a) Lower rate 6% 3.66 0.22 7 .08% (b) Stan d ard rate 1 12% 14.66 1. 7 6 28.30% (c) Stan d ard rate 2 18% 5 . 50 (Goods) 10 . 60 (Services 0 . 99 1 .91 2 . 90 31 .....

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..... rtant as in GST, there should be no increase in the price of basic necessities of food, shelter and clothing. The Hon'ble Minister from Tamil Nadu expressed that it might not be necessary that the taxpayer would pass the reduced incidence of tax under GST to the consumers by reducing the price. He also pointed out that rates of tax were different for branded and unbranded items of food such as biscuits. He emphasized that the impact of tax on items under CPI was at the heart of the GST Rate Structure. The Hon'ble Minister from West Bengal requested for more clarity as to how inflation impact was calculated and requested for the calculation sheets to be sent. This would enable States to carry out their own analyses which would enrich the overall quality of data analysis. (In accordance with this request, in the evening of 18 October 2016, the GST Council Secretariat circulated the data sheets as obtained from the Department of Revenue to the nodal officers of the States) 40. The Hon'ble Minister from Kerala enquired about the estimate of the present tax collection of Central Excise and VAT at the proposed GST rate structure. The Joint Secretary, Department of Revenue .....

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..... ST required to be raised would be around ₹ 86,000 crores as 42% of CGST collection would be devolved to the States. As corresponding SGST rate would also go up, the total additional tax burden on the citizens would come to ₹ 1.72 lakh crores. This would also lead to additional gain to all States, whereas only few States would need compensation. He further stated that whatever balance of the collected cess was left in the Compensation Fund at the end of the five years would be devolved to the States. 42. The Hon'ble Minister from Odisha stated that GST was meant to reduce multiple taxes and therefore, he did not support the proposal to introduce cess and to continue with Clean Environment Cess, NCCD, etc. He also raised a doubt whether the Constitution permitted imposition of cess under GST. He also stated that in GST, the aim of one nation-one tax should be realized. He further suggested to restore a demerit and sin rate of tax to minimize the amount of compensation. He suggested to impose cess on direct tax which would not be regressive in nature and would not cast burden on the poor. In the alternative, he suggested to impose a cess on import but not on GST. .....

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..... ssed that the States might impose cess in anticipation of revenue loss which might not actually occur. Cess for Compensation Fund was different and the Council would have the power to decide the mode of disposal of the unspent amount in the Fund. 45. The Hon'ble Minister from U.P. stated that if cess was collected by the Central Government, citizens of his State would have to pay cess whereas his State might not require compensation. He stated that in principle, cess be allowed to be collected by all States especially in case of natural disasters. He also suggested to impose higher tax on luxury goods. The Hon 'ble Chairperson clarified that the Constitution permitted States to impose additional tax in case of natural disasters on the recommendation of the GST Council. The Hon'ble Minister from Punjab observed that the States losing revenue after GST implementation would need to be compensated from a common kitty and all States should also bear this burden. He observed that mechanism for compensation should not be dependent upon the CFl as the manner of devolution could change. He stated that the broad principle to be followed was that no State should stand to lose i .....

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..... bserved that this suggestion was against the relevant provisions of the Constitution. 49. The Hon'ble Minister from Bihar stated that a new taxation system was introduced in India after 70 years and a holistic view needed to be taken on how to run the country's indirect tax administration. He observed that neither Centre had unlimited resources nor States were completely devoid of resources. He further observed that as 70% to 80% of revenue of States came from indirect taxes, States should not suffer on account of GST reform and they should continue to have resources for their welfare schemes. At the same time, consumers should not be made to pay very high taxes. He suggested to keep taxes on luxury goods at the current levels. He also supported the idea of raising resources for compensation by imposing a surcharge on Income tax and Corporate tax. 50. The Hon'ble Minister from Chhattisgarh observed that there was no Constitutional provision to levy cess after the amendment of Article 271 of the Constitution and imposition of cess could become unconstitutional leading to uncertainty in regard to compensation. He also observed that the general expectation of the pub .....

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..... cers from indirect tax to Income tax or to levy additional CGST. The Hon'ble Chairperson observed that the Direct tax base was of about five crore people and this base was unlikely to rise radically because large segments of population like those in agriculture and those falling below the poverty line would remain out of income tax net. He also reminded that in the Indian scenario, normally only one member of a family was an Income tax payer. Some other suggestions of the Hon'ble Minister of West Bengal to raise more revenue was to rationalize multiple deductions in Corporate tax, address the problem of inverted duty structure in Customs, expedite the process of anti-dumping investigations and review the Free Trade Agreements. He also suggested that the tax levels on luxuries should remain at the current level. 53. The Hon'ble Chairperson reminded the House that the Council was to discuss policy issues relating to GST and not of Direct tax. He further observed that GST was designed to benefit all States in the long run and therefore, it would not be fair for the beneficiaries to state that their taxpayers should not be touched at all. He also reminded that not only 4 .....

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..... them. The Chairman CBEC affirmed the large incidence of smuggling of cigarettes and informed that about 100 containers of cigarettes were seized last year. The Hon'ble Minister from D.P. reminded that rate of tax on gold was also being doubled to 4%. The Chairperson observed that the rate of VAT on gold in most States and that of Central Excise was 1 % and Kerala was the only exception with a rate of 5%. He expressed the hope that in GST regime there would be less unaccounted transactions in gold. 56. The Hon 'ble Chief Minister of Delhi suggested keeping a rate of 40% tax on cinemas and Centre's rate could be higher and this could be earmarked for GST compensation. The Hon'ble Minister from Assam suggested that cess collection could also be divided between the Centre and the States and this would bring down the compensation requirement of the States. The Hon'ble Deputy Chief Minister of Delhi supported this proposal. The Hon'ble Chairperson recognized the historical allergy to cess. He observed that when the present Central Government assumed office, the fiscal deficit was 4.6% without counting several other items like CST compensation to States. He also .....

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..... Central Government shall have power to levy cess under Article 246 read with Entry 97 of List I of Schedule 7 of the Constitution, as this was being levied before Constitution (One hundred and first Amendment) Act. He added that under Article 271 of the Constitution, power to levy surcharge on GST was restricted after the aforesaid Constitutional amendment but not the power to levy cess. He stated that this view would need to be confirmed from the Law Ministry. The Hon'ble Minister from West Bengal cautioned that this could be challenged in a Court of Law. He further added that under Article 270 of the Constitution, cess could be levied for a specific purpose and he wondered how the purpose of cess would be justified. The Hon'ble Chairperson clarified that the Clean Environment Cess was a carbon tax to discourage use of coal and the money so collected was going to the CFI and not to the Ministry of Environment. He added that GST law could provide for imposition of cess and could also provide that it would be kept in the separate fund to be used for GST compensation and to be distributed in a manner provided by law. 59. The Hon'ble Minister from Odisha raised an issu .....

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..... tes through VAT. He observed that the issue to be examined was that if this component of tax was kept for States, then how it would structurally fit into GST as this would imply that States' share of ₹ 6500 crores would be added to SGST whereas the Centre's share of ₹ 6500 crores shall go towards cess. He stated that this issue would need to be examined at the officers' level before a final decision was taken on the subject. 61. In view of the above, it was agreed to defer a decision regarding the method of compensating States for GST losses for the next meeting to permit the officers to examine this issue further. It was also agreed to defer further discussion on the proposed bands of GST rates for the next Council meeting. 62. In respect of Agenda item 4, the Council decided as follows - (i) to defer a decision regarding the method of compensating States for losses due to implementation of GST for the next meeting and to allow further examination of the same at officers' level; (ii) to defer further discussion on the proposed bands of GST rates for the next Council meeting. Agenda item: 3 Provision for Cross-Empowerment to ensure Single .....

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..... tax payers and 85% of VAT payers have turnover below ₹ 1.5 crore and thus it led to highly skewed distribution. Option III- Division based on turnover and the nature of business which was considered in the Council meeting held on 22-23 September 2016 but discussions had remained inconclusive. Under this option, it was proposed that taxpayers dealing in goods below the turnover of ₹ 1.5 crore shall be dealt only by States, taxpayers dealing in goods with turnover above ₹ 1.5 crore shall be dealt by both States and Centre and taxpayers dealing in services shall, to begin with, be only dealt by the Centre, till State officers were trained on service tax. However, it was later recognised that this arrangement causes a divide between goods and services and also created jurisdictional problems for those suppliers who had a substantial mix of supply of both goods and services. Option IV - Cross-empowerment with division for specific functions in which it was envisaged to divide taxpayers only where human interface was required like audit, return scrutiny etc. as most of the other functions would be automated. It envisaged to cap audit to 5% of the total number of .....

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..... of information based enforcement action, it was proposed that officers of the Centre and States shall act independently on the basis of intelligence. Initiation of action by one authority shall be intimated to the other authority and the other authority would not normally initiate any enforcement action for a given period of time except in cases where concrete information was available and action was authorized by an officer at a higher level. It was also proposed that the administrative arrangement could be reviewed after every three years except for the arrangement for enforcement related activities. 67. In the second presentation made by Shri Ritvik Pandey, Commissioner of Commercial Tax, Karnataka, the five options as mentioned above were touched upon. It was informed that a group of officers of the States and Centre who were part of the sub-committee for drafting the Model GST Law and Rules looked into various aspects of cross-empowerment and single interface from the implementation view point and found the pros and cons overall in favour of Option IV, keeping in view the fact that GST would have highly computerized processes and minimal human interface. It was high lighted .....

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..... s relating to administration of IGST. On the subject of information based enforcement action, it was suggested that both Centre and States be allowed to act independently irrespective of the model adopted. However, initiation of action by one authority should be intimated to the other authority through GSTN and the other authority should not initiate any enforcement action for a given period of time except for cases where concrete information was available and the action was authorised at a higher level. 69. The Hon'ble Minister from UP expressed that there was no merit in keeping IGST under the exclusive jurisdiction of the Central authorities as the State authorities had considerable experience in dealing with CST and in inter-state co-ordination. He further expressed that decision on place of supply would be on the basis of the extant provisions of law and therefore, no conflict of interest might arise. The Hon'ble Chairperson pointed out that there could be situations of conflict of interest where a tax authority might rule the tax payable to be intra-state rather than inter-state. 70. The Hon'ble Chief Minister of Puducherry enquired as to what was the Centra .....

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..... d that the figures mentioned above would need to be relooked as now revised figures have been received from Goods and Services Tax Network (GSTN). The Chairperson, CBEC informed that according to the latest data available with the GSTN received by them in course of PAN validation, the total number of registered VAT dealers, as on 31 December, 2015, was 81.38 lakhs. Shri Prakash Kumar, CEO GSTN explained that in many States, there was a difference in the number of registered dealers and active dealers. The total registered VAT dealers were 81.38 lakhs but total active dealers were 66.53 lakhs and the number of PAN verified dealers was even less (59 lakhs). Shri .Upender Gupta, Commissioner GST, CBEC, further clarified that in Service Tax, total taxpayer base was 38 lakhs, and out of this 26 lakhs were active taxpayers and PAN verified taxpayers were 21 lakhs. He stated that likely taxpayer base in GST would be 107 lakhs, and out of this States accounted for 67% of the taxpayer base and the Centre 33%. He stated that the same percentage remained if calculation was done on the basis of number of active dealers. He also clarified that taxpayers below the threshold of₹ 20 lakhs ha .....

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..... to be constituted to explore all policy options and present the same before the Council. It was proposed that the Council may authorize the Chairperson of the Council to constitute such Technical Committee of officers. It would be open for any State to join such Committee by volunteering for the same and that the Council would be kept duly informed regarding formation of such Technical Committees. He further informed that the Empowered Committee had constituted a committee of officers that was looking into GST Laws and Rules. He proposed that the same committee could be redesignated as the Technical Committee to look into GST Laws and Rules and to carry out other technical discussions. The Hon'ble Minister from U.P. stated that membership of the committee should be opened again so that if more States wanted to join, they could do so. The Hon'ble Chairperson observed that the existing committee should continue and if more States wanted a representation in this committee, they could register their request with the GST Council Secretariat. The Council approved this proposal. The Hon'ble Ministers of UP and Telangana requested to join the membership of this Committee. 7 .....

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