Introduction
Goods and Services Tax (‘GST’) came into force eight years ago on 1 July 2017. Eight long, eventful years that have been full of sound and fury. But, do they signify something? Yes and No. Yes, because GST, at times, operates like a tinkered version of State-VAT laws and not a transformative reform of India’s indirect tax regime. At other times, GST reveals glimpses of its potential as a transformative reform, only to be bogged down by unexplained and reactive changes introduced by a heavy handed tax administration. On average, GST continues to meander between these two versions. As I argued elsewhere before, it is a reform that is continuously deformed.
In this article, let me take you through GST’s journey of eight years via the prism of eight statutory amendments. And, like most amendments to Indian tax laws, a majority of the amendments to Central Goods and Services Act, 2017 (‘CGST Act of 2017’) are tied to the hip with judgements that didn’t align with the Revenue Department’s view. In this article, I focus only on eight amendments to underline the nature of some of the changes made to GST. In no particular order, here is the list:
Journey in Eight Amendments
1. Actionable Claims become Specified Actionable Claims
Originally, only three actionable claims were subject to GST: betting, lotteries, and gambling. GST was hit with the curveball of online gaming, which wasn’t expressly included or excluded from GST’s scope. Courts classified a species of online gaming, i.e., fantasy games, as games of skill which immediately put them out of the purview of three actionable claims and beyond GST’s scope. The Revenue Department took the stance that all online gaming amounted to gambling and was subject to GST, and the value of supply was the entire amount staked by players and not just the platform fee collected by the online intermediary. The Revenue Department accordingly issued show cause notices to online gaming companies alleging obscene amounts of tax evasion. Eventually, the Karnataka High Court pronounced the Gameskraft judgment dismantling the Revenue Department’s entire (mis)understanding and deliberate misinterpretation of gambling law jurisprudence. But, CGST Act of 2017 was amended almost immediately thereafter in 2023 to include online gaming and casinos in the amended definition of ‘specified actionable claims’. Whether the amendment will have retrospective effect is an open question, though the Revenue Department would certainly prefer going back in time to collect taxes by claiming that the amendment is only clarificatory in nature. Which it is certainly not. The Supreme Court, currently seized of the appeal against the Karnataka High Court’s judgment, may provide some clarity, though the amendment of 2023 has ensured that all kinds of online gaming – games of skill or games of chance – are now expressly within the purview of GST. Irrespective, the amendment of 2023 may now pave way for the Revenue Department to actually recover the huge tax amounts it claimed has been evaded by online gaming companies. The Revenue Department’s claims of amount of tax evaded may prove to be a fantasy or a bountiful reality. Time will tell.
2. Doctrine of Mutuality is Buried, But Alive
The simple concept underlying doctrine of mutuality is that a person cannot transact with themselves and such transactions cannot be subjected to sales tax or service tax. Indian courts applied the above doctrine to keep transactions between a club and its members outside the tax net by reasoning that there was complete identity between the two constituents. To bring transactions between clubs and its members within the tax net, the 46th Constitutional Amendment introduced a legal fiction via Article 366(29-A)(e) in the Constitution and seemingly buried the doctrine of mutuality. Decades later in 2019, the Supreme Court in Calcutta Club Ltd case held that the Parliament only intended to include unincorporated clubs in Article 366(29-A)(e) and not incorporated clubs. The Supreme Court concluded that doctrine of mutuality continued to be applicable to incorporated and unincorporated member’s clubs even after the 46thConstitutional Amendment. To contain the spillover effect of the Supreme Court’s decision in GST, the Revenue Department immediately amended Section 7 of CGST Act of 2017 which defines supply. The amendment implemented with retrospective effect, introduced clause (aa) to Section 7 of CGST Act of 2017 and was intended to undo the effect of the Calcutta Club judgment as it incorporated a legal fiction that a constituent and its members were distinct persons. And transactions between them constituted supply. After the amendment, all was seemingly well and doctrine of mutuality was inapplicable to GST, until the Kerala High Court declared the amendment of Section 7 of CGST Act of 2017 as unconstitutional. The Kerala High Court reasoned that the legal fiction of treating a single person as two, went beyond the Constitutional understanding of the term sale which necessarily involves two members. Prima facie the Kerala High Court seems to have correctly found a gap in the Constitutional prescription and statutory definition. Presumably, the Supreme Court will have the final word on this issue.
3. ITC Conditions Become Increasingly Onerous
Section 16 of the CGST Act, 2017 prescribes conditions to claim Input Tax Credit (‘ITC’) for taxpayers. The conditions for ITC have changed in the past eight years including phasing out provisional ITC. The most significant change in claiming ITC was Section 16(2)(aa) which was introduced in 2021. Section 16(2)(aa) restricts ITC of a taxpayer until the details of the invoice or debit note have not been furnished by the supplier in their monthly output statement and the same have been communicated to the recipient. In simpler terms, a purchaser cannot claim ITC for the GST paid on their inputs/purchases until their supplier accurately and timely uploads the relevant invoices in their monthly returns. For it is only when the supplier completes and files their monthly returns with invoice details would the purchase be reflected in the purchaser’s relevant return and provide basis of their ITC claim. The introduction of Section 16(2)(aa) effectively made the purchaser dependent on the supplier for claiming ITC. Making a purchaser dependent on the supplier for ITC was an exception or an outlier in pre-GST regimes, and reserved only for cases where there was prima facie or established collusion between a purchaser and a supplier. Under GST, it has now become the default policy. The mere fact that the purchaser possesses the invoice or debit/credit note reflecting the purchase and payment of GST is not enough evidence of a genuine supply. The amendment with introduction of clause (aa) is good as the Revenue Department outsourcing to the purchaser the obligation of verifying the bona fide and tax habits of its supplier(s). Equally, the purchaser shares the burden of making sure the supplier remits the GST to the State, else the purchaser may not be able to claim ITC despite having paid GST to the supplier.
4. Scope of Provisional Attachment Expands
Section 83 of the CGST Act, 2017 originally empowered the Commissioner to issue an order for provisional attachment during the pendency of proceedings. And, if in the opinion of the Commissioner, it was necessary to attach the property to protect the interest of the Revenue an order for provisional attachment could be issued against a property owned by the taxpayer. After a few judgments, the Revenue Department discovered that the safeguard of ‘pendency of proceedings’ was a hurdle to its desire of arrogating to itself unfettered powers. Equally, the courts clarified that power of provisional attachment only extended to the property owned by the taxpayer. For example, the Bombay High Court clarified that powers of provisional attachment only extended to taxpayers against whom proceedings were initiated against the relevant provisions of the CGST Act, 2017. And that the Revenue Department could not automatically attach properties of other taxpayers.
In 2021, Section 83 of the CGST Act, 2017 was amended to provide the Commissioner power to provisionally attach property any time after initiation of proceedings. Also, the Commissioner could provisionally attach property of any person mentioned in Section 122 implying the property attached need not necessarily belong to the person against whom proceedings were initiated. The expansion of scope of powers of provisional attachment is at odds to its repeated characterisation as a draconian power with far reaching effects. Ideally, the power of provisional attachment should be kept narrow and circumscribed unless there is a compelling reason to expand it. The amendment of Section 83 seemed achieved the opposite effect to the detriment of taxpayer rights. The Central Board of Indirect Taxes and Customs in recognition of debilitating effect of the amendment has issued guidelines for officers to exercise restraint in exercise of such powers. However, the amendment expanded the scope of power of provisional attachment diluting the safeguards in the guidelines. While the power of provisional attachment is necessary in some cases, the expansion of its scope power that has titled the scales of intrusion and intervention heavily in favour of the Revenue Department.
5. Confiscating Goods, and Removing a Non-Obstante Clause
Originally, Section 129 and Section 130 of the CGST Act of 2017 began with a non-obstante clause giving birth to an interpretive question: which provision will supersede the other? Equally, while both provisions provided for procedure of detention and confiscation respectively, there was also an inter-linkage between the provisions. Detention of goods under Section 129, on non-payment of penalty, could lead to confiscation of goods under Section 130. This gave rise to the second question, i.e., whether confiscation is linked to detention? Courts tried to interpret the provisions harmoniously multiple times clarified that both provisions were independent of each other. In 2021, the non-obstante clause from Section 130 was removed to ‘delink’ both the provisions and bring more clarity. However, an equally pertinent issue of the Revenue Department mechanically and routinely confiscating goods remains addressed. Courts had repeatedly cautioned the Revenue Department to not invoke Section 130 unless the taxpayer had an intention to evade tax. However, we haven’t seen the practice of directly confiscating goods abate even after the amendment. Absence of a single document or a patent misdescription of goods, misclassification of goods or any similar ground can lead to confiscation of goods. The threshold remains low leading to unnecessary adversity for taxpayers.
6. Amendment to ‘Operationalise’ GSTATs
In 2019, the Madras High Court declared the provisions for composition of GSTATs as unconstitutional. The judgment proved to be a spoke in the wheel preventing immediate operationalisation of GSTATs, but what followed was an exemplary display of snail-paced policy making that continues its slow march. Neither did the Revenue Department appeal against the Madras High Court’s judgment, nor were the relevant provisions amended with a sense of urgency that the issue demanded. Eventually, after 4 years, via the Finance Act, 2023 provisions relating to composition of GSTATs were amended to provide an immediate spring for operationalisation of GSTATs. However, vis-à-vis GSTATs, only piecemeal changes have been made since 2023. A semi-operational website, regular recruitment advertisements, appointment of some personnel for ceremonial purposes have been completed, but GSTATs continue to be in limbo. I’ve previously argued that the GST’s rule of law foundation is proving to be weak and effective given that GSTATs are not operating. GSTATs form a crucial role in dispute resolution as they are designed as the first appellate forum and a fact finding authority. But, despite the amendment of 2023, little progress have been made to provide a sounder footing for fair dispute resolution under GST. Instead, the burden is being borne by advance authorities, whose rulings are typically poorly authored and binding only on the parties to the petition. Equally, the High Courts continue to shoulder the disproportionate burden of adjudication via writ petitions where they have to undertake the fact finding exercise and lay down the law in detail of a relatively novel law. A less than ideal, in fact dismal state of affairs for GST – a law that has been repeatedly touted as a transformative reform of indirect tax regime.
7. ‘Or’ Becomes ‘And’ to Nullify Safari Retreats Judgment
‘And’ does not mean ‘Or’, was Supreme Court’s strict interpretation in Safari Retreats case. The Supreme Court opined that if use of ‘Or’ was a legislative mistake, then it could have been corrected in the interim period between the High Court’s judgment and hearing before the Supreme Court. The Revenue Dept, after the Supreme Court’s decision said yes, it was an error. And we will correct it now, via a retrospective amendment. No explanation given as to why the legislative ‘error’ was not corrected after the High Court’s judgment and why the Revenue Department chose to fight a prolonged litigation if the ‘error’ was apparent and well-known. And why the Revenue Department file a review petition despite deciding – after recommendations of the GST Council – to amend the CGST Act of 2017 retrospectively. The broader issue that the amendment brings into focus is lack of hesitation in introducing a retrospective amendment. While the CGST Act of 2017 has been amended retrospectively previously – for example, when amending the definition of supply under Section 7 to nullify the Calcutta Club case ratio – this amendment after Supreme Court’s judgment revealed that not much has changed under GST regime. The Revenue Department fought a case and advocated a particular interpretation. When the Supreme Court did not agree with the Revenue Department’s view, the law was amended swiftly. The Revenue Department continues to assert that the Supreme Court did not interpret ‘legislative intent’, a standard excuse when any judgment doesn’t align with the Revenue Department’s interpretation.
8. Anti-Profiteering Regime Ends
While not a statutory amendment, this policy change was one of the most welcome changes brought to the GST regime. National Anti-Profiteering Authority (‘NAA’) was established to protect consumer interests due to implementation of GST. NAA, however, never satisfied the parameters of a fair dispute resolution body. Its biggest contribution to GST was in November 2022, when its mandate was brought to an end and its remit was officially transferred to the Competition Commission of India. NAA, during its existence, pronounced a large volume of orders which were essentially a replica of each other. The orders were full rhetoric, obfuscation, devoid of basic legal reasoning, and imposed multiple and heavy penalties on taxpayers for seemingly violating the anti-profiteering mandate contained in Section 171 of the CGST Act, 2017. Thus, a formal end to the NAA’s regime was a net positive contribution to GST. While the Delhi High Court, in a sub-par judgment has upheld the constitutionality of NAA, it doesn’t whitewash the rhetoric-filled and nuanced deprived NAA orders. And the Delhi High Court has allowed the taxpayers to challenge the individual orders of NAA on the ground of arbitrariness, among others. While the entire superstructure of NAA could have been easily held to be unconstitutional, we may see some redemption for taxpayers if some of the individual orders of NAA are struck down in the future. The biggest solace remains that NAA will not be issuing any new orders. That may remain the biggest win for taxpayers.
Conclusion
Amendments in any law, are par for the course. For tax law even more so. The frequency or no. of amendments sometimes do not tell the real story. Sometimes, a large no. of amendments indicate an instability in the law and tax policy. But often amendments do not reveal if the law was drafted properly in the first place necessitating frequent amendments. However, GST laws were drafted after marathon deliberations and discussions. Though the Parliamentary debates were woefully short and unproductive, the draft and model laws that were released to the public were continuously modified after feedback and comments.
In my view, the GST laws have not been frequently amended due to sub-par drafting but to incrementally align the statutory provisions with the Revenue Department’s view. The expansion of the scope of power of provisional attachment, inclusion of all online games including games of skill within the scope of GST, nullifying the Supreme Court’s view in Safari Retreats case, expanding scope of supply to nullify doctrine of mutuality – all point towards an obstinate Revenue Department insisting on paving its GST way as per its own desire. And the fact that some of the amendments have a retrospective effect does not augur well for tax certainty and predictability. The promise of no retrospective amendments in GST laws stands buried for now. Hopefully, it will resurrect soon and cure the imbalance in GST administration that currently is in favour of the Revenue Department, at the expense of taxpayer rights and convenience.
