RATIONALISATION OF INDIA’S GST- SOME SUGGESTIONS.
1.First of all, we should admit we made a highly skewed and flawed GST Law & Rules. The cut-paste theory adopted by law drafters from various fields of indirect taxation in the pre-GST era resulted into a very bad law. Only with this admission in mind, the people should now sit and try to retrieve the situation and to find ways of improve the GST law and the revenue for States Government and the Central Government.
2.As a professional who has worked on GST for last more than five years in depth, I would offer the following suggestions:
(a)The whole gamut of complicated Section 16 & corresponding Rules to claim input tax credit suffers from serious legal drafting. The kind of harassment and corruption that has been unleashed on taxpayers is unfathomable. “What is the proof of receipt of goods or services?” Notwithstanding the inherent negative impact of so-called “Circular Trading”, lawmakers have to spell out the requirements to show proof of receipt of goods & services. Simply the GST officials start raiding people, level baseless allegations with huge demands without basis and arrest people u/s 132 for committing non-cognizable offences. In spite of the maximum harassment unleashed in India on taxpayers and professionals, tax evasion has not stopped and with this kind of law, in my view, it will never stop. The law making has to be simple, transparent and must tell the people what is the expected of them.
To this extent, the lawmakers have to refine the requirements of section 16 & the Rules affecting section 16.
Again in Section 17, each clause where lawmakers have disallowed the input tax credit continues to have exceptions. Why so? If ITC is to be denied, then such clauses, for simplicity sake, should not contain exceptions.
(b)Remove all exemptions relating to services in all Schedules. Tax all services @ 3% without input tax credit. This should include the various schemes of housing. At best if still zero rate has to be prevail for political exigencies, there should be mechanism of refund 3% wherever full tax exemption has to be given. This will bring the entire world of contractors into GST regime, which otherwise can avoid GST payments and continue to buy from grey market and without payment of GST and bill to the Government.
(c)Increase the TDS rate to minimum 2% and 2%. With only 1% + 1% at stake, a lot of contractors don’t bother to go back to GST department to take refund as it is difficult to them to show purchases from GST registered taxpayers and thereby they avoid legal consequences of their perceived illegal actions.
(d) There have to be no exempt goods or services in GST regime and in our country this is a must. Notwithstanding the objections from States Government all exempted goods, without any exception, should be subjected to just tax of 1% without any input tax credit. This 1% tax will have a multiplier effect on the entire tax system as all these persons shall come within GST net and consequentially into income-tax net. States Government should also realize this fact.
(e)For all the restaurants, tours & travels, event management companies, concert organizers and other service providers in this line, a uniform rate of 18% should be prescribed. For such service providers, the input tax credit mechanism should be restricted to a maximum of 25% of the eligible input tax credit. The lawmakers are within their rights to restrict the availability of input tax credit as it is a concession given and not a right created.
(f)The zero rating of exports is a cause of concern for the country as thousands of exporters have been recently blacklisted. GST Council should make the exports “zero rated”. But exporters should be allowed to export goods only with tax payments and not LUT. The LUT issue is causing a lot of operating issues . It is avoidable. At best, the payments made by exporters on export of goods & services or both should be refunded to them within three days so as to avoid the working capital issues. The claims for unutilized tax credits for exports ex India and their calculations with a lot of conditions are causing tremendous hardships to not only to exporters but also to the tax officials. It is avoidable.
All the taxpayers should be legally asked to maintain specific accounts and purchase / sale vouchers for all “zero rated” activities and for this a certificate from a qualified chartered accountant should be annexed to claim refund. The exporters issue is a big issue and, in my opinion, the GST Administration is losing heavily on this issue as the officials are unable to uncover the complicated accounts. Section 16 of IGST Act along with relevant Rules should be amended at the earliest to incorporate these suggestions.
(g)The issue of granting 100% in input tax credit on capital goods is another area which instead of simplifying has complicated the input tax credit mechanism especially when these capital goods are at a later date supplied by the taxpayers. Input tax credit on capital goods should be restricted only for manufacturers who are engaged in manufacturing the “goods” and it should be given to them in five years yearly installments. Whenever they want to sell the capital goods, they should pay output tax on book value of the goods. This should be a simple mechanism.
(h)The GST law should have a specific provision that no input tax credit shall be allowed on discounts on any supply except when it is given on invoices raised on the recipients. The disputes revolving around credit notes should be done away with the simple modification of law.
(i)The composition schemes and its associated rules should be re-examined as it is for the tax officials to ensure compliance by the taxpayers adopting composition schemes for paying taxes.
(j)Advance Rulings mechanism is another area where GST law has miserably failed. There should be and must be a Central Advance Ruling Authority operating in every State and the Advance Rulings given by them should remain final throughout India until they are not set aside by Supreme Court of India. Appeal against orders by these Authorities should lie only to Supreme Court of India. The Advance Ruling Authority should comprise of a retired Supreme Court judge as a Chairman, a retired High Court judge as a Member and a retired tax expert either as an Advocate or a Chartered Accountant or a bureaucrat as its Member. Till this is done, the Advance Ruling Authority will not serve any purpose except harassment to the tax systems and to the tax payers. The present system is indeed horrible.
(k)The overlapping jurisdiction in GST law is a cause for malpractices. This whole issue should be examined and both the State as well as Central GST Authorities should pick up cases for audit / investigation. A minimum of 10% cases beyond a certain turnover and into key industries should be picked up for audit and investigation with the prior approval of the Commissioner concerned. The audit team should be trained for auditing these cases and the team should be headed by at least Joint Commissioner who should report to the Commissioner only. And they should be authorized to pass an assessment order which should be appealable directly to GST Tribunal. The compliance should be placed before the prescribed authority, may be GST Council.
(l)The e-way bill mechanism and the business of transporting goods by any means of transport should be re-examined and the enforcement officials for this purpose should know their limits. Whenever they enforce the law on this issue, they should be able to prepare a Report in a specific format and if this Report is found wrong, they should be held accountable. GST Council must address issue of huge corruption in this field.
(m)The choice of HSN mechanism in GST System has not produced any results whatsoever and I don’t think it is going to achieve anything. A minimum of 70% of the tax officials in India know nothing about HSN and more than 80% of the tax professionals also know nothing about HSN. This whole exercise is a futile exercise. An expert committee should be formed to limit the scope of HSN for goods & services or both and HSN should be re-defined with specific items mentioned in each HSN to be adopted for GST law. This will prove good.
(n)The lawmakers must have a relook on real estate sector. At 5% without ITC including the two-third value of land, the tax is very heavy. Value of land which may be a part of composite supply should not have been taxed as it is prone to legal challenges. Further the denial of ITC and the requirements of 80% purchase from registered suppliers is too complicated to be understood. All those real estate developers, who have the adjustment to buy from grey markets, are continuing to buy from grey markets leading to huge loss of tax revenue.
My suggestion is to charge GST on “Circle Rate” of the property especially in case of sale of residential flats/commercial spaces. This is followed in income-tax and Supreme Court has supported this view. This will avoid a lot of tax leakage.
For sale of independent properties, the easiest way to adopt is compute the Circle Rate of land and add to it the cost of construction as per Government’s rates. Such method will bring in a lot of transparency and the law shall be unambiguous. It will also provide “a level playing field”.
(o)For all notices under section 73 & 74, there should be a law that if the taxpayers willing to pay the tax amount, before further proceedings under these practices, the tax officials should be able to settle the case subject to approval of the Commissioner. We must stop litigation in this area.
(p)The entire tax administering mechanism of IGST should be examined by an expert panel in my view the role of Customs must be avoided. IGST should have its own cadre to administer GST on imports and on exports subject to the law to be followed by them.
The above suggestions should be looked into.
By Sushil Verma
Advocate
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