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TMI BlogMinutes of the 11th GST Council Meeting held on 4th March 2017X X X X Extracts X X X X X X X X Extracts X X X X ..... th the decisions of the GST Council and as vetted by the Ministry of Law Justice, Government of India 4. Development of an e-Way bill System by Goods and Services Tax Network (GSTN) 5. Date of the next meeting of the GST Council 6. Any other agenda item with the permission of the Chairperson 3. In his opening remarks, the Hon'ble Chairperson welcomed all the Members of the Council and thereafter invited discussion on the listed agenda items. Discussion on Agenda Items Agenda Item 1: Confirmation of the Minutes of the 10th GST Council Meeting held on 18 February: 2017: 4. The Hon'ble Chairperson invited comments of the Members on the draft Minutes of the 10th Meeting of the Council (hereinafter called the 'Minutes') held on 18 February 2017 before its confirmation. The Members suggested the following amendments to the draft Minutes. 4.1. The Hon'ble Minister from West Bengal stated that in paragraph 4.1.1, the word 'above' in the second sentence of his recorded version should be replaced by the word 'below'. The Council agreed to this suggestion. 4.2. The Hon'ble Minister from West Bengal highlighted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Minister of Puducherry stated that presently in his Union Territory, restaurants were charged to tax at the rate of 2% and observed that the proposed tax rate of 5% was on the higher side. 4.4. Shri P. Mara Pandiyan, Additional Chief Secretary (Taxes), Kerala stated that in paragraph 9.2.2. of the Minutes, the Hon'ble Minister of Kerala had raised the issue of having a legal provision for matching the annual GST return of a taxpayer with his annual Income Tax return. The Secretary stated that such provision of matching could not be part of the law as it would go against the provision of Section 138 of the Income Tax Act which prohibited the Income Tax department to share income tax return of a person with anyone else. The Hon'ble Chairperson added that sharing a person's Income Tax return with anyone else was a prosecutable offence under Section 138 of the Income Tax Act. The Secretary observed that keeping in view such sensitivity, it was decided that annual financial statement could be used for matching as this also contained the declaration of a person's income. The Hon'ble Minister from West Bengal stated that his State had recently amended the VAT Law a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ethrough mode): i. Issue No. 1 Section 2 (a) (81) other territory includes territories other than those comprising in a State and those referred to in sub-clauses (a) to (e) of clause (114) of section 2; Note: Clauses (81) to (119) to be consequently renumbered and other consequential changes (referencing) to be carried. ii. Issue No. 2 Section 109(10) - In the absence of a Member in any Bench due to vacancy or otherwise, any appeal may, with the approval of the President or, as the case may be, the State President, be heard by a Bench of two Members: Provided that any appeal where the tax or input tax credit involved or the difference in tax or input tax credit involved or the amount of fine, fee or penalty determined in any order appealed against, does not exceed five hundred thousand rupees and which does not involve any question of law may, with the approval of the President and subject to such conditions as may be prescribed on the recommendations of the Council, be heard by a bench consisting of a single Member. iii. Issue No. 3 Section 110(11) - The Technical Member (Centre) or Technical Member (State) of the Appellate Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ited Nations Organization or any Multilateral Financial Institution and Organization notified under the United Nations (Privileges and Immunities) Act, 1947 (To be handled through notification) x. Issue No. 10 - Section 19 - Tax wrongfully collected and paid to Central Government or State Government. (i) A registered person who has paid integrated tax on a supply considered by him to be an inter-state supply, but which is subsequently held found to be an intra-State supply, shall, be granted refund of the amount of integrated tax so paid in such manner and subject to such conditions as may be prescribed. 6.2. Shri Upender Gupta, Commissioner (GST Policy Wing), Central Board of Excise Customs (CBEC) broadly explained the changes made in the CGST Law between the draft of 26 November 2016 (which was the most recent version of the Draft Laws put in public domain) and the draft of 1 March 2017 presented as an Agenda Note for the 11th Meeting of the Council. These broad changes are recorded in Annexure 3 and were circulated to the Council members during the meeting. 6.2.1. On the issue of change in the legal scheme of Advance Ruling Authority, i.e. to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... engal stated that in his State, 90% of the self- declared refund claim was given automatically and only 10% was held back for checking for any violation. He informed that his State gave interest at the rate of 6.5% for delayed refund and added that the Council could deliberate further on this issue. The Hon'ble Minister from Uttar Pradesh suggested that if refund was not paid within 3 to 4 months of filling the claim, a higher rate of interest should be paid by the Government. The Commissioner (GST Policy Wing), CBEC informed that the clause of interest payment for delayed refund applied when the refund was paid beyond a period of 60 days from the date of filling the application whereas a taxpayer was required to pay interest only after 90 days of confirmation of the tax demand by the assessing officer. He also informed that the rate of interest paid by the Government was linked to its cost of borrowing which was around 6%. Shri Ritvik Pandey, CCT, Karnataka stated that the interest was also payable for refund of pre-deposit paid at the appellate stage. CCT, Gujarat observed that the taxpayer would have collected the amount equivalent to the tax from the buyer and therefore, he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rest for delayed refund would encourage the tax authorities to clear the refund claims early and stated that presently his Government was saddled with the burden of processing refund claims as old as 7 years. Shri Arun Goyal, Additional Secretary, GST Council pointed out that the language used in Section 50 of the draft CGST Law was to 'pay interest at such rate, not exceeding 18%' and that this gave some flexibility to the Government in fixing the actual rate of interest for delayed payment of tax. 6.2.6. The Secretary observed that payment of refund by Government could also be withheld due to a stay order given by a Court and after the judgement, the Government might be required to pay the refund with interest liability. The Hon'ble Minister from Uttar Pradesh observed that if the Supreme Court decided the case in favour of the taxpayer, it implied that the fault lay with the Government. He added that if the Government bore the implication of errors of judgement of its officers, it would make the administration more accountable. The Hon'ble Minister from Karnataka stated that one way to address this issue could be that the Government could pay a slightly higher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of 6 to 7 years when the Court ordered him to do so. He informed that more than ₹ 100 crore was not paid by the dealers of petroleum products in his Union Territory due to litigation in the Court. The Hon'ble Minister from Telangana stated that the rate of interest for delayed refund for Government should be kept at 6% and the rate of interest for delayed payment of tax by a private person should be kept between 12% to 15%. 6.2.8. The Hon'ble Minister from Jammu and Kashmir stated that default in payment of tax was a public policy issue and it should not be mixed with the sovereign borrowing power of the Union of India. He stated that one solution to this issue could be to include a provision in the Public Service Guarantee Act that the Tax Administrations would pay refund within six months of filing an application. The Hon'ble Chairperson observed that such a requirement would then only apply to the State Governments. The Hon'ble Minister from Uttar Pradesh stated that such a requirement could be made applicable to all the Acts. He stated that the issue was not one of sovereignty but the large differential in the interest rate to be paid by the Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bution of taxpayers between the Central and the State administration and that this need not be put in the Law. The Hon ble Chairperson observed that the ambit of Section 6 would be in accordance with the Council's decision and that the content of notification would be as decided by the Council. He added that the Government was to only issue such a notification and not determine its content, which would be determined by the Council. He added that the power to vary the content of the notification should rest with the Council. The Hon ble Minister from West Bengal observed that the complexion of the Council could change in due course and, therefore, suggested that the following formulation should be incorporated as part of Section 6 of the CGST Act: 'Without prejudice to the provisions of this Act, officers appointed under the State Goods and Services Tax Act are authorised to be the proper officers for the purposes of this Act, subject to such conditions as may be notified by Government on the recommendations of the Council.' The Hon ble Chairperson stated that the present formulation in Section 6 of the draft CGST Act also conveyed the same meaning. 6.5.2. The Hon&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sential that if a CGST officer passed an order, he must also pass an order under the SGST Act. He emphasised that it must be ensured that two orders were not passed by two authorities on the same issue and that this could be achieved by incorporating this idea in the Act rather than in the Rules or in a notification. He observed that this would give comfort to taxpayers. The Secretary observed that this formulation could be put in the relevant GST Rule. The Hon'ble Minister from Karnataka stated that it should be put in the Law and gave the following formulation for the same: 'Without prejudice to the provisions of this Act, officers appointed under the State Goods and Services Tax Act shall be authorised to be the proper officers for the purposes of this Act subject to such conditions as may be notified by the Government on the recommendations of the Council.' He further stated that under the cross-empowerment framework, it was essential that officer of only one government acted on an issue and on his doing so, officers of the other government should be precluded from taking any action. He stated that while this could be put in the Rules/notification, putting it in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o a chaotic situation. 6.5.6. The CCT, Gujarat stated that a similar provision was also required in respect of appeal provisions. The Hon'ble Chairperson observed that an order passed under one Act covering demand of duty under both the Acts could not be deemed to be an order under two different Acts and that no two appeals could be filed to the Appellate authority in respect of such an order. He added that if CGST appellate authority heard an appeal against an order covering demands under both CGST and SGST Acts, there should be a bar in the law for the SGST appellate authority to hear the same appeal. The Hon'ble Minister from Uttar Pradesh stated that the same principle should also apply for refund of taxes. The Secretary stated that the Law Committee should prepare a formulation giving effect to the understanding that that SGST officers shall be cross-empowered under the CGST Act in the Act itself and that only one order shall be passed for one dispute involving taxes under both the CGST and the SGST Act and that if a CGST officer passed an order, which also included demand for tax under the SGST Act, the SGST officer shall be barred from passing' order on the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. He pointed out that Section 10 of the IGST Act related to place of supply of goods and Section 12 related to place of supply of services which were lengthy Sections. He stated that incorporating the definitions of 'intra-State supply of goods' and' intra-State supply of services' in the draft CGST Law would have involved incorporating Sections 8, 10 and 12 of the draft IGST Act which would have been unwieldy and therefore, the Law Committee suggested that this need not be incorporated in the draft CGST Law. He also pointed out that the Union Law Ministry had advised that definitions adopted in one Act should not be repeated in the other Acts. The Council accepted this explanation and agreed to modify the decision taken in its 5th Meeting and agreed not to incorporate the definitions of 'intra-State supply of goods' and 'intra-State supply of services' in the CGST Act as it was already contained in the IGST Act. 6.1 0. The Hon'ble Deputy Chief Minister of Delhi pointed out that in Section 2(90) of the draft CGST Act, 'Commissioner' was not included in the definition of 'proper officer' and this could mean that in Section 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;ble Deputy Chief Minister of Delhi suggested that sale of land and building should be removed from Schedule III of the draft CGST Law and cautioned that if this issue was sealed today, then a big opportunity to curb black money would be lost. The Hon'ble Minister from Telangana stated that this issue was already decided and should not be re-opened. The Hon'ble Chairperson stated that the letter of the Hon'ble Deputy Chief Minister of Delhi deserved examination as it had rightly pointed out that it did not impinge upon States' power to levy stamp duty and it did not bring agricultural land under GST and at the same time completed the input tax credit chain. The Hon'ble Deputy Chief Minister of Delhi stated that introduction of GST and availability of input tax credit on land and building would discourage hoarding of land by investing black money into it. The Secretary observed that as per the decision in the 7th Meeting of the Council, this issue was to be reconsidered after one year of implementation of GST and if there was an agreement at that time to bring sale of land and building under GST, it would require amendment to Schedule Ill. He therefore suggeste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of business' to the IGST Law but the same was not done. Commissioner (GST Policy Wing), CBEC explained that as the whole rovision of supply was in Section 7 of the draft CGST Law, the Law Committee suggested that it was desirable to keep this provision as part of Section 7 of the CGST Law. The Council agreed to this suggestion and accordingly agreed to modify its decision taken in the 10th Meeting of the Council (held on 18 February 2017). 6.15. The Hon'ble Minister from Karnataka stated that tax collection at source by electronic commerce operators [Section 52(1) of the draft CGST Act] was only a tracking mechanism to create a transaction trail in respect of transactions done through an electronic portal. He observed that electronic commerce was a nascent business and it fitted well with the aim of creating a digital economy. He observed that keeping these factors in view, while the concept of tax collection at source might be kept, but the rate of this tax collection should be upto 1% and not frozen at 1% as currently drafted in Section 52(1) of the draft CGST Law. He stated that this would imply that the maximum tax collection at source from electronic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y provided that 10% of the disputed tax amount would be paid as pre-deposit at the level of the First Appeal and an additional 20% would be paid as pre-deposit at the level of the Second Appeal making the total pre-deposit as 30% of the disputed tax amount, and the question was whether this amount should be increased to 100% for filing an appeal before the High Court. Shri Rajiv Jalota, CCT, Maharashtra stated that in his State, no part payment of tax was allowed for filing appeal in High Court and that the demand of tax could also not be stayed by the High Court. He added that such demand could, however, be stayed under the High Court's Writ jurisdiction. The Hon ble Chairperson stated that the principle of depositing 100% tax before filing an appeal negated the very right of appeal. He observed that for a high value demand of tax, say ₹ 20 crore, it would be unviable to file an appeal in High Court. He further stated that the taxpayer would then take recourse to filing a Writ petition in the High Court and in all likelihood, the Court would grant a stay, making this provision a nullity. The Commissioner (GST Policy Wing), CBEC pointed out that under Section 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial Member. He added that an administrative function was different from a quasi-judicial function and that there were judgements of the Court that whenever a quasi-judicial function was performed by a single Member Bench, it should consist of a Judicial Member. The Hon'ble Minister from Uttar Pradesh expressed disagreement with the suggestion and stated that the District Magistrates and the Commissioners also decided a large number of cases involving the rights and obligations of the citizens without involving a Judicial Member. The Hon'ble Chairperson observed that the Member (Technical) of a Tribunal would generally be appointed from amongst the officers of the level of Commissioner, Chief Commissioner, or a retired senior officer and because of his long experience in taxation maters, he would be as knowledgeable, if not more, than a Judicial Member, many of whom might be drawn from the rank of advocates or Additional District Judges whose exposure to tax matters would be limited. He stated that in this view, there was no justification to insist that a single Member Bench should only consist of a Judicial Member. The Hon'ble Minister from West Bengal stated that ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not in course or furtherance of business' to the IGST Law. 7.6. In Section 19(1), to add the words as indicated in bold italics below: A registered person who has paid integrated tax on a supply considered by him to be an inter-state supply, but which is subsequently held found to be an intra-State supply, shall, be granted refund of the amount of integrated tax so paid in such manner and subject to such conditions as may be prescribed. 7.7. Section 31(3)(b) and Proviso to Section 31 (3)(c) to be re-examined by the Law Committee in order to shift some part of the provision to the relevant GST Rules. 7.8. To suitably change the wording in Section 52(1) to indicate that the rate of tax collection at source by electronic commerce operators shall be upto 1%. 7.9. In Section 54(12), the reference to Section 50 to be replaced by Section 56. 7.10. To modify Section 56 to provide that if refund is not given within thirty days of the passing of an adjudication or appellate order where the order has acquired finality, the rate of interest for delayed refund would be 9% and in other cases of refund, where interest is payable, it shall be paid at the rate of 6%. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and or Regional Benches of the Appellate Tribunal; or... 7.18. In Section 129(l)(c), to make the amendment as indicated in bold italics and strikethrough mode below: upon furnishing a security equivalent to the amount payable under clause (a) or clause (b) in such form and manner as may be prescribed in such form as may be prescribed equivalent to the amount payable under clause (a) or clause (b): 7.19. To add the missing Sub-section and Section numbers in Explanation under Section 168 which reads as follows: For the purposes of this section, the Commissioner specified in sub-section (90) of section 2, sub-section (3) of section 5, clause (b) of sub-section (9) of section 25, sub-section (1) of section 37, sub-section (2) of section 38, sub-section (6) of section 39, sub-section (1) of section 151, and section 167 shall mean a Commissioner or Joint Secretary posted in the Board and such Commissioner or Joint Secretary shall exercise the powers specified in the said sections with the approval of the Board. 7.20. To add the words indicated in bold italics below in Clause 2 of Schedule I: Supply of goods or services or both between related persons or bet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry with Legislature within the meaning of State, Union Territory without Legislature could not be considered as a State for the purpose of Goods and Service Tax. He added that since, Article 366 (26B) of the Constitution had a reference to Article 246A, 269A and 279A, 'Union Territory without Legislature' could not be covered by the SGST/IGST Act. He further stated that the other fact was that Section 2(102) of the CGST Act had defined State as State including a 'Union territory with Legislature'. 8.2. The Commissioner, GST Council stated that the power to levy GST was derived from Article 246A of the Constitution and under it, the Central Government had the power to impose GST across the entire territory of the Union of India. He added that once this power was vested with the Central Government, it had the legal authority to apply multiple taxes (like CGST and Union Territory Goods and Services Tax). He added that the Central Government also had residuary powers of taxation under Entry 96 of the List I of the Schedule 7 of the Constitution and under this, it could impose GST in Union Territory without Legislature. The Hon'ble Minister from Uttar Pradesh s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce with the provisions of Section 3 of the Customs Tariff Act, 1975 and this implied that it would be levied on the value inclusive of Basic Customs duty. 8.6. The Hon'ble Minister from West Bengal stated that there appeared to be a contradiction between Section 12(8) and Section 13(9) of the draft IGST Law as the former referred to 'place of supply of services by way of transportation of goods, including by mail or courier... ', whereas the later referred to 'place of supply of services of transportation of goods, other than by way of mail or courier...'. He stated that mail or courier was included in Section 12(8) but was excluded in Section 13(9). Shri G.D. Lohani, Commissioner, CBEC explained that Section 12(8) of the draft IGST Law dealt with supplies within the country whereas Section 13(9) dealt with supplies where either the supplier of services or the recipient of services was located outside India. He explained that under the current Service Tax law, couriers dealing with international supply were not treated as transporters and couriers for inbound and outbound supplies to and from India were subject to tax. He further explained that for supplies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ference to Article 246A of the Constitution of India. 9.3. The Law Committee to examine Section 12 (8) and 12 (9) for any apparent contradiction, and if there was no contradiction, these provisions could continue in their present form. Agenda Item 4. Development of an e-Waybill System by Goods and Services Tax Network (GSTN): 10. Introducing this agenda item, the Secretary stated that Section 68 of the draft CGST Law contained a provision for inspection of goods in movement and that it provided that the Government might specify a document or a device to be carried by a person in charge of a conveyance who carried goods exceeding a certain prescribed value. He recalled that this provision (the then Section 80 of the Model GST Law) was discussed in the 6th Meeting of the Council (held on 11 December, 2016), particularly in the context of having check-posts at the State borders and it was felt that in the GST regime, check-posts need not be kept at the borders to physically check goods but it was necessary to record information regarding movement of goods across the State borders. He added that it was also discussed that the movement of goods, whether within or across th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld the next meeting on either 14, 15 or 16 March 2017. After deliberation, the Council agreed to hold its next meeting on 16 March 2017 in New Delhi. Agenda Item 6: Any other agenda item with the permission of the Chairperson 13. The Hon'ble Minister from Uttar Pradesh informed that migration of the existing taxpayers to GSTN was very slow and that the process needed to be expedited. Shri Navin Kumar, Chairman, GSTN informed that about two-thirds of the existing Value Added Tax (VAT) dealers had activated their accounts on GSTN but of late, the speed had slowed down as many taxpayers whose annual turnover was between ₹ 10 lakh and ₹ 20 lakh were waiting for clarity in the law before migrating to GSTN. The Hon'ble Chairperson observed that the work of migration of existing taxpayers should be carried out efficiently. 14. The Hon ble Chairperson expressed his deep appreciation for the hard and long working hours put in by the officers of the Law Committee, which enabled the CGST and IGST Laws to be passed by the Council in this meeting. He observed that this was a milestone in the Centre-State relationship as, on an important issue like taxation, Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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