RGNUL FINANCIAL & MERCANTILE LAW REVIEW
SPECIAL ISSUE ON GOODS AND SERVICES TAX (2020)
(Selected Entries from the Colloquium on GST Law organised in collaboration with Lakshmikumaran & Sridharan on 29.02.2020)
UNITING THE REGIME BY UPSETTING THE STRUCTURE: IS THE GOODS AND SERVICES TAX ANTITHETICAL TO THE BASIC STRUCTURE DOCTRINE?
The author is a third-year student of B.A., LL.B. (Hons.) Five-Year Integrated Course at the National Law University, Odish
In this article, the author examines the Goods and Services Tax from the lens of federalism. It provides a twofold argument against the singular authority of the GST Council over state taxation policies, and lack of effective legal remedy for the same. The final conclusion of the author is that the 101st Constitutional Amendment Act would fail the test of the Basic Structure Doctrine, as failing the test of federalism.
GOODS AND SERVICES TAX ON OCEAN FREIGHT: DELINEATING THE DICHOTOMY OF DUAL LEVY
Rubel Bareja and Shubh Dixit
The authors are final-year student of B.A., LL.B. (Hons.) Five-Year Integrated Course at the Institute of Law, Nirma University, Ahmedabad and the National Law University, Jodhpur, respectively
In this article, the authors attempt to decipher the existing dichotomy in the levy of tax on ocean freight. Part I examines the change in the taxability of ocean freight with Part II discussing the judgments of the Gujarat High Court, holding the levy on ocean freight as unconstitutional and ultra-vires the IGST Act, 2017 as well as Finance Act, 1994. Part III suggests a way forward by doing a stakeholder analysis while Part IV throws light upon the unnecessary tax burden imposed through a legal fiction and Part V concludes by summarizing the views of the authors on the obvious dichotomy of dual levies.
A SECOND BITE AT THE ANTIPROFITEERING APPLE UNDER GOODS AND SERVICE TAX
The author is a third-year student of B.A., LL.B. (Hons.) Five-Year Integrated Course at the Rajiv Gandhi National University of Law, Punjab.
The article focuses on the Anti-Profiteering Rules (APR) introduced to mitigate the effects of GST and analyses the grey areas of affixing liability on the digital platforms. The author also suggests cooperation between the regulatory authority and the businesses as a way of ensuring better enforcement. The first section familiarises the reader with the introduction of GST. The next section discusses the impacts of transitioning to a new tax system as experienced by different countries. This is followed by the third section, which solely focuses on the Australian experience on the introduction of GST in 2000. The next section presents an analysis of the Anti-Profiteering regime in India. The next two sections briefly comment on the need and role of the National Anti-Profiteering Authority. The eighth and final section concludes with suggestions to ease the transition period.
GOODS AND SERVICES TAX IN CASINOS: UNDERSTANDING THE FIASCO OF TAXABILITY
Gurudas Khurana and Kushal Kedia
The authors are fourth-year students of B.A., LL.B. (Hons.) Five-Year Integrated Course at the Rajiv Gandhi National University of Law, Punjab.
The article discusses the scope of taxability of services provided by casinos under the GST and pre-GST regime with respect to the definition of consideration as defined under section 2(31) of the Central Goods and Services Tax Act, 2017. The article also presents a comparison with the international jurisprudence on the subject. Section one familiarises the reader with the various legal aspects of gambling in India, followed by an overview of the Goods and Services Tax in India, in section two. The next section examines the scope of “supply” for betting and gambling. The fourth and fifth sections focus on the operation of casinos and provide an analysis of the tax liabilities attached therewith. Section six present the international outlook on the issue, followed by the final section, wherein the authors conclude with suggestions to settle the confusion of casino operators.
THE INPUT TAX CREDIT PARADOX: AN ANALYSIS OF RULE 36(4) OF THE CENTRAL GOODS AND SERVICES TAX (CGST) RULES, 2017 WITH SPECIFIC EMPHASIS ON ITS LEGAL VALIDITY
Abir Satsangee and Shabd Roop Satsangee
The authors are working as Chartered Accountant at Shabd Roop Satsangee & Articled Assistant at Sahib P. Satsangee & Co., Chartered Accountants, respectively
In this article, the authors examine Input Tax Credits (ITCs) in a 5 broad sections. The 1st and 2nd sections introduce ITCs and the Indian provisions on them. The 3rdsection tests Rule 36(4) on the touchstone of the Constitution of India while the 4th section does so on other grounds open to challenge in the Courts of Law. The fifth section summarises the discussion and gives suggestions and the way forward.
CONSUMER IS THE KING: A CRITICAL ANALYSIS OF NATIONAL ANTI- PROFITEERING AUTHORITY
Rohit Maheshwary and Shrutika Lakhotia
The authors are fourth-year students of B.A., LL.B. (Hons.) Five-Year Integrated Course at the CHRIST (Deemed to be University), Bengaluru
In this article, the authors examine the need for the insertion of an anti-profiteering measure under the CGST Act along with highlighting the Australian and the Malaysian jurisprudence. It further discusses the establishment of the National Antiprofiteering Authority with special reference to Chapter XV of the Central Goods and Services Tax Rules, 2017. The article then emphasizes the challenges faced by traders, suppliers, and companies by critically analyzing the orders passed by the NAA. The article essentially discusses the overall impact of the anti-profiteering measure and provides certain recommendations for the efficient working of NAA.
VOLUME VS. VALUE: MODALITIES TO PASS THE TAX RATE REDUCTION BENEFITS UNDER ANTIPROFITEERING PROVISIONS
Anuj Jain and Ashutosh Choudhary
The authors are third-year student of B.B.A., LL.B. (Hons.) Five-Year Integrated Course and B.A., LL.B. (Hons.) Five-Year Integrated Course at the National Law University, Odisha, respectively
The article analyses the Volume vs. Value debate in light of the Anti-Profiteering provisions. The National Anti-Profiteering Authority has failed to appreciate important issues, which has piqued litigation on such issues. The first section introduces the concept of Anti-Profiteering, followed by a discussion on Anti-Profiteering norms in section two. The next section presents a detailed take on the volume vs. value debate. Section four paints a picture of the international jurisprudence with respect to the passing of tax reduction benefits, leading up to the fifth section, wherein the authors give suggestions to mitigate risks caused by the uncertainty in determining the commensurate reduction in prices. The sixth and final section concludes with final suggestions.
IMPACT OF BIFURCATION ON GOODS AND SERVICES TAX IN THE NEW UNION TERRITORIES POST THE JAMMU AND KASHMIR REORGANIZATION ACT, 2019
Abhilasha Mittal and Asma Hussain
The authors are fourth-year students of B.A., LL.B. (Hons.) Five-Year Integrated Course at the Jindal Global Law School, O.P. Jindal Global University, Sonipat.
The article discusses the impact of the Jammu and Kashmir Reorganization Act, 2019 (Act) on the applicability of GST to the two Union Territories formed as a result of the Act. It also presents an analysis of the transition plan from state-specific Acts to the Central GST Act, and what it meant for the concerned businesspersons. Section one familiarises the reader with the Act that bifurcated Jammu and Kashmir, followed by a description of indirect taxation in the pre-bifurcation era. Section 3 focuses on the applicability of GST before the reorganization, leading up to a discussion on the Act in section four. The next section focuses solely on the transition plan, followed by a brief description of the measures that were taken to ease the transition process. Section seven presents an analysis of the registration process for the businesspersons in the newly formed UTs. The final section concludes with the author’s opinion on the issue.