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TMI BlogCritical study of provisions of CENTRAL GOODS AND SERVICES TAX ACT, 2017–( in (short CGST) from clause 36 to clause 50 of section 2. - Part 2X X X X Extracts X X X X X X X X Extracts X X X X ..... Critical study of provisions of CENTRAL GOODS AND SERVICES TAX ACT, 2017–( in (short CGST) from clause 36 to clause 50 of section 2. - Part 2 - By: - DEV KUMAR KOTHARI - Goods and Services Tax - GST - Dated:- 9-7-2022 - - Earlier article in series: Critical study of provisions of CENTRAL GOODS AND SERVICES TAX ACT, 2017 ( in (short CGST) the preamble and Chapter 1 (up to clause 35 of section 2) An Article dated: July 6, 2022 In this article author has made attempt for critical study of the preamble and part of Chapter 1 of CGST Act from to S.2 (36) . Other clauses of definition clause will be taken up in another article. In second and subsequent articles there can be reference to earlier article and some portions ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cessary for subsequent articles may find repetition for convenience of readers. Section 2 is definition clauses. Broadly we find four types of definitions in CGST. In the table below, in left column provisions are reproduced with highlights and in right column some observations and remarks are given by the author for critical aspects. Statutory Provisions CENTRAL GOODS AND SERVICES TAX ACT, 2017 From provisions with highlights for catch words, critical words having special significance. { }are used when clause is divided in parts which are long. Observations / remarks Definitions. 2. In this Act, unless the context otherwise requires, In de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finition clauses we find use of words means (at 102 places), includes ( at 18 places) shall have ( at eight places) is used when definition from any other enactment is adopted. When opening word means is used, it must be definite meaning and not subject to context. When there is adoption of definition in another enactment, the scope of that expression shall be as used in that enactment and shall also be changed if there is change in that enactment. In some definitions other provisions of CGST itself are adopted/ referred for meaning. (36) Council means the Goods and Services Tax Council established under article 279A of the Constitution ; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This is not a definition clause but is about Constitution of GST Council. The Article 279A of the Constitution provisions are made for constitution of GST Council. Some other important provisions of COI about GST council include Art. 246A - Special provision with respect to goods and services tax. Definition clause in COI that is article 366 vide sub clause (26B) mentions that State with reference to articles 246A , 268 , 269 , 269A and article 279A includes a Union territory with Legislature] ; Article 368 is about Power of Parliament to amend the Constitution and procedure therefor. It provides that an amendment to Article 279A shall also require to be ratified by the Legislatures ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of not less than one-half of the States by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent. (37) credit note means a document issued by a registered person under sub-section (1) of section 34 ; We need to refer CHAPTER VII TAX INVOICE, CREDIT AND DEBIT NOTES (38) debit note means a document issued by a registered person under sub-section (3) of section 34 ; We need to refer CHAPTER VII TAX INVOICE, CREDIT AND DEBIT NOTES. This suggest that Debit note and Credit note referred herein can only be issued by the supplier and not by the buyer, for purpose of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... GST. (39) deemed exports means such supplies of goods as may be notified under section 147 ; 147. Deemed exports.- The Government may, on the recommendations of the Council, notify certain supplies of goods as deemed exports, where goods supplied do not leave India, and payment for such supplies is received either in Indian rupees or in convertible foreign exchange , if such goods are manufactured in India. We need to keep track of notifications and amendment thereto regularly and as and when required. (40) designated authority means such authority as may be notified by the Board; We need to keep track of notifications and amendment thereto regularly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and as and when required. (41) document includes written or printed record of any sort and electronic record as defined in clause (t) of section 2 of the Information Technology Act, 2000 (21 of 2000); General meaning and also as per S.2(t) of I.Tec. Act and its amendments. (42) ―drawback‖ in relation to any goods manufactured in India and exported, means the rebate of duty, tax or cess chargeable on any imported inputs or on any domestic inputs or input services used in the manufacture of such goods; It is only in respect of any goods manufactured in India and exported. Drawback can be by way of rebate of levies stated which are in res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pect of inputs goods and services used in the manufacture of goods exported. (43) electronic cash ledger means the electronic cash ledger referred to in sub-section (1) of section 49 ; Section 49 is about payment of tax, interest, penalty and other amounts through electronic cash ledger. (44) electronic commerce means the supply of goods or services or both, including digital products over digital or electronic network ; Expression over digital or electronic network is an important factor. If it is without such a network, it will not be covered. (45) electronic commerce operator means any person who owns, operates or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manages digital or electronic facility or platform for electronic commerce; (46) electronic credit ledger means the electronic credit ledger referred to in sub-section (2) of section 49 ; Section 49 is about payment of tax, interest, penalty and other amounts through electronic cash ledger. (47) exempt supply means supply of any goods or services or both which attracts nil rate of tax or which may be wholly exempt from tax under section 11 , or under section 6 of the Integrated Goods and Services Tax Act, and includes non-taxable supply; Here also we find a definite meaning which get expanded by use of includes . This is therefore a fie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld of litigation and makes things very complex. (48) existing law means any law, notification, order, rule or regulation relating to levy and collection of duty or tax on goods or services or both passed or made before the commencement of this Act by Parliament or any Authority or person having the power to make such law, notification, order, rule or regulation; (49) family means, (i) the spouse and children of the person , and (ii) the parents, grand-parents, brothers and sisters of the person if they are wholly or mainly dependent on the said person; The meaning appears to be definite . So far clause (i) relating to spouse and childre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the person are concerned, f or them dependency is not required. Only wholly or mainly dependent persons mentioned in clause (ii) will be part of family. Therefore, changes in dependency will have a telling effect, if any such person is part of family or not. (50) fixed establishment means a place ( other than the registered place of business) which is characterised by a sufficient degree of permanence and suitable structure in terms of human and technical resources to supply services, or to receive and use services for its own needs; Registered place of business has its own significance. It may or may not be a fixed establishment. There seems no definition of registered place of b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usiness in CGST Act . We find use of expression place of business 34 times, fixed place of business 2 times in the Act. In certificate of registration prescribed in Form GST REG-06 under Rule 10(1) ] we find mention about Address of Principal Place of Business, and f Additional Places of Business. The registration certificate is required to be prominently displayed at all places of business in the State Therefore, it can be inferred that any place, for which a registration is obtained or places which are indicated in certificate of registration are deemed registered place of business. Fixed establishment is characterised by : sufficient degree of permanence and suitable structu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re in terms: of human and technical resources to supply services, or to receive and use services for its own needs. For the purpose of definition and even meaning to be applied in particular context, other provisions of the GST laws need to be considered in a harmonious manner. This is because whole enactment is an integrated code. Clauses (51) onwards will be discussed in next part of the article for purpose of critical analysis. Learned readers are requested to share their views and experience. - Reply By Ganeshan Kalyani as = Sir , article is very informative. Thanks. Dated: 10-7-2022 - Scholarly articles for knowledge sharing authors experts professionals Tax Management India - taxmanagementin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia - taxmanagement - taxmanagementindia.com - TMI - TaxTMI - TMITax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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