1. BACKGROUND

The significant Goods and Services Tax law (GST) was brought into place and effectuated on 1st July 2017 after adoption on 8th August 2016 of the 101st Constitutional Amendment Act, 2016. This week marking the 3rd anniversary of the law, warrants a mention of the historic midnight session addressed by Hon’ble President Pranab Mukherjee, Prime Minister Narendra Modi and Finance Minister Arun Jaitley in the Central Hall of Parliament on 30th June 2017, where the game-changing economic reform was formally announced.

Hon’ble President Sri Pranab Mukherjee stated, ‘GST is the result of a broad consensus arrived at between the Centre and the States and is a tribute to the maturity and wisdom of India’s democracy”

The Hon’ble Prime Minister in his own flair nicknamed GST as “Good and Simple Tax”. The following are some noteworthy assertions made by him in his midnight address:

• The new law shall ensure ‘one nation, one tax’ which shall be executed in a standard manner in all the states. The same was expected to put an end to much of the earlier compliance headache for businesses from the erstwhile multiple Indirect Taxation collection system.

• It shall be a revolutionary taxation system for the digital India. It is not merely ease of doing business but would demonstrate the way of doing business.

• It shall be an example of Co-operative Federalism which shall facilitate inclusive growth of the nation. States shall now get equal opportunities of development where both Centre and State are playing equal role in its operations.

• It would lead to immense savings of time and cost. Specifically, that the new law would eliminate delays at State border crossings caused by existence of different State taxation policies.

• The law would cater to the cascading erstwhile indirect tax regime by introduction of a simpler, more transparent modern tax administration which would help curb corruption (including the low-level corruption of pre-GST era) and reward honesty.

In addition to the above, the primary objectives of this new consumption based indirect tax system instead of erstwhile multiple taxes on Manufacturing by Centre and Sale by States known as GST has sought to achieve uniform GST procedures and seamless Input Tax Credit (ITC); increase Tax to GDP ratio and revenue surplus; reducing economic distortions; transparency in taxation system; increase in employment opportunities; development of a unified national market to boost Foreign Investment and ‘Make in India’; increase the product competitiveness in the international market; improving the overall investment climate in the country which will uniformly benefit development of states.

2. NOTABLE ACHIEVEMENTS

The new law has its own share of achievements. It has considerably stopped the cascade of taxes upon taxes, has reduced compliances in contrast to the erstwhile indirect tax regime, and has an effectively functioning GST Council which meets regularly to discuss important challenges faced by the law. Further, the new law brought up the Central uniform E-Way Bill across the country, the rainmaker policy of availability of seamless credit has been beneficial for a number of industries while leading to the emergence of another set of concerns stated hereinafter. The new law has further led to a substantial decline in the number of cases of tax evasion.

While appreciating the milestones which have been achieved by the GST law, a look back at the eventful years of the introduction of the reform, demonstrate a swelling number of confusions and litigations in the recent past. A surge in the legal, technical and procedural faults has been observed. These need to be reviewed for their immediate solutions.

3. CHALLENGES

The implementation of the new law as per its design has been made substantially reliant on the efficient digital platform-GSTN which is regrettably susceptible to technical glitches. It is the single largest problem which needs to be strengthened and streamlined. Too much concentration & centralization of power in the hands of few bureaucrats has kept the extensive reform away from the people of the country. GST failed to touch the areas requiring transformation and corrections in Indian economy. GST has not lived up to its potential due to continuous technical hiccups, faulty implementation and initial un-preparedness, repeated experiments in the framing of GST Law; lack of consistency and sustainability had adversely affected the business and industry. India lost a big opportunity to happily feel GST as a beneficial reform. The challenges faced by the law today can further be discussed as follows:

1. GST Law is not well drafted, it is cut and paste of erstwhile three main Indirect Tax Laws which make it a combination without clarity, simplicity, transparency and intelligence of its own. During this three year’s period, GST has seen in the year 2017, 256 Notifications, 29 Circulars, 12 Orders and 1 Removal of Difficulty Order (ROD) while in the year 2018, 192 Notifications, 56 Circulars, 4 Orders and 4 ROD as well as in the year 2019, 174 Notifications, 50 Circulars, 2 Orders, 13 ROD and 11 Corrigendum were issued. In the current year of 2020, we have already seen 73 Notifications, 11 Circulars, 1 order and 1 ROD. In total 695 Notifications, 146 Circulars, 19 Orders, 19 ROD and 11 Corrigendum were issue in addition to numerous Notifications and Amendments in the GST Law which comprised of three Acts & their corresponding Rules i.e. CGST, SGST and IGST. Further, the taxpayer needs to understand and implement the law after considering the interpretation and observations made in more than 1000 Judgments rendered by various High Courts creating more chaos than bringing clarity.

2. Whether the businessman can keep track of such large number of Notifications, Circulars, Clarifications, ROD, etc. while performing his other business duties. Can it still be called a ‘Simple’ Law? Even a Tax Professional having requisite educational qualification, knowledge and experience is worried every moment that whether what he is advising the client or implementing the Law while filing of Return or performing any usual compliance is correct in-accordance to the Law. The genuine and vigilant Businessman including their Tax Advisors are just spending un-productive time in keeping track of extended dates, waving of Late fees or fines and interest rather than focusing on real issues facing GST and its long-term success.

3. The difficulty increases when the Law is driven absolutely through the complex Notifications issued everyday by the Government and complicated Circulars by Central Board of Indirect Taxes and Customs.

4. RULE OF LAW in GST is absolutely missing in the country, which is a serious question in a seasoned democracy like India. The Government have been regularly collecting around ₹1 Lakh Crore every month as GST revenue, but no Judicial Forum has yet been put in place for the genuine taxpayer for resolving their grievances. Every time they have to knock the doors of the High Court or Supreme Court which is practically not possible for small or medium dealers. Lack of judicial forum like Tribunal and Appellate Authorities as prescribed and provided by the Parliament in the GST Law has placed the taxpayers in the precarious situation since he cannot take any legal action to safe guard his interest. Probably, GST Council which itself is one of the finest examples of Cooperative Federalism, has not realized the essential requirement of proper judicial forum. Probably, bureaucracy responsible for implementing GST Law wants no or minimum interference so that their arbitrary actions and pro-revenue approach could continue even at the detriment of the country wide business. Imagine the plight of the repressed taxpayers in a democracy for last three years, the Government could not establish and start the ‘GST Tribunal’ neither the ‘Central Advance Ruling Authority’ while the local AARs manned with junior officers deficient in legal acumen are creating havoc with their revenue biased interpretations of law in most cases.

5. Even as the time-gap arrangement of filing the 1st Appeal, the procedure is too much complicated, tedious and time consuming. As per the present instructions in the various States after uploading/filling of appeal online, hard copy must be submitted before the 1st Appellate Authority. What is the benefit of filling appeal online? Certified Copy of the questioned Order is separately needed to be filed manually.

6. GST was expected to integrate the entire value chain starting from raw materials to finished products, this one advantage itself should have been a huge economic benefit for India, but GST grossly failed due to numerous arbitrary riders placed in the law. Thus, the aim of removal of cascading effect in the economy could not be achieved to the desired level nor the business could become globally competitive neither the prices of the finished products consumed by the citizens could come down due to the restrictions on Input Tax Credit adjustment seamlessly through-out the supply chain.

7. A new problem has unfortunately erupted and faced by taxpayer. Suppose during the movement of goods from Gujarat to Punjab if goods are verified & seized by Mobile Squad Authority in Rajasthan, all legally required solutions like filing of clarifications, written reply etc. even filling of Appeal against the Tax & Penalty Order have to be completed before the proper Authority in Rajasthan i.e. at the remote place of seizure itself which is entirely new State or a unknown place for a normal consignor of Gujarat or consignee of Punjab. Such tedious procedure forces the harassed consignor or consignee to succumb before the arbitrary, illegal and un-justified huge demand of security deposit in Rajasthan. This is leading to corruption rather than removing the corruption, as envisaged earlier by the Government before implementation of GST. The present bureaucracy is absolutely sitting upon this very sensitive issue and no solution is being found out by GST Council inspite of repeated representation by Trade, Industry and Professional Bodies.

8. Classification of Goods for applying the tax rate has many complications. In respect to same commodities Custom officer depends on their own Custom Classifications based on old thinking resulting in different views than GST Officer as per HSN Code. The custom duty calculated and paid at ICEGATE i.e. web portal of customs and GSTN i.e. web portal of GST both managed by Central Government have different interpretations and applications creating huge uncertainty for the import business. To develop and maintain transparent price structure by a business which is importing the goods as well as manufacturing the goods of similar brand in the country is a big issue due to this variance in thinking of the two Central Departments. Even after three years of implementation, the Government has utterly failed to integrate the windows of two Central Departments under Central Board of Indirect Taxes & Customs. Blocking of fund due to lack of integration as well as riders placed in process of refund/adjustment has further aggravated the financial problems of the export or import business.

9. The rationalization of GST rates has also been taken by the Government in a big way, the number of entries in 28 percent GST Tax slab has been reduced from the earlier 228 items to only 37 items as well as some 500 items have seen rate tweaks over a period of 3 years which is certainly a good start, but still, we have at least seven GST slabs. This defeats the principle of simplicity and also introduces inverted tax structure. The classifications tend to be arbitrary, which means that slab allotment is susceptible to political patronage and undesirable lobbying.

10. In the recent time of COVID-19, the businesses have come across an intricate controversy about the applicable HSN code and accordingly the GST Tax rate on face mask, sanitizer, medical consumables & tools and other such items of essential requirements for fighting the pandemic. Similar such issues are erupting time and again to complicate the business in various fields.

11. The problem of fake registration under GST could not be tackled by the Government inspite of the availability of large number of State as well as Central Officers. Rather this laxity is increasing both the evasion and corruption to the great disadvantage of genuine business inducing tax distortions.

12. Due to in-efficient digital infra-structure the pre-requisite of matching of GSTR-1 (Outward Supply) and GSTR-2 (Automatic up-dation of Inward Supply) could not be put in place which is detrimental to the very ethos of GST; defeating the advantage of ‘Self-Policing’ feature. Now, with an aim to cover-up the failure, the Government is giving some limited benefits to the registered dealers knowingly that such leniency is certainly susceptible to misuse by un-scrupulous registered dealers as well as independently detrimental to genuine business which is conducting all its transactions after recording in the books of accounts and payment of due taxes.

13. The policy of ‘minimum personal contact’ with the representative of tax payer or ‘face to face verification’ is being largely defeated by the old mentality of field officers of the Central and State Departments as they are directly contacting the representative of assessee again and again on the mobile telephones as declared with the details of the registered dealers. Repeated visits are enforced by the departmental officers on one pretext or the other, until the taxpayer succumb to the pressure of corruption.

14. The Goods and Services Tax has many anomalies in its present form, inputs are taxed at higher rates than final products, this phenomenon known as ‘Inverted Duty Structure’ resulting in blockage of fund which has become a very common and general problem of several Industries & Trade. It is tough to get even the top-most bureaucracy understand the real issue for its solution, further every time the industrial or trade body cannot approach High Court for obvious reason as their action of adopting judicial route being characterized as against the Government.

15. One of the important aims of GST was to allow seamless credit of tax paid at the earlier stage from the Outward Liability to remove cascading effect, but large number of direct and indirect restrictions has been imposed on allowing ITC. This is creating interruption which is against the spirit of homogeneous integration of value chain. Government with all its might, un-reasonably blocked the transitional Input Tax Credit available as on 1st July 2017 for the erstwhile taxes (VAT, Central Excise or Service Tax etc) paid in repealed laws merged with GST; why so?

16. The GST was expected to raise efficiency in business with the aim to lower the final prices of supply of goods and services, a goal it has largely failed to achieve, this could be a popular advantage to the citizens after implementation of GST. Anti-Profiteering provisions of GST Law have not been rationally used to ensure passing on differential benefit by the business to the ultimate consumer in the larger interest of economy of the country.

17. GSTN Official Web Portal of the Government has failed in data management and analysis for accurate policy planning of targeted growth; sectoral data is not available for the economic activity so the business as well as Trade & Industry bodies are unable to get the precise data to make a long term planning in their business area.

18. Even after 3 years of implementation of GST Law the Central & State Departmental Officers are still untrained to analyze the transaction data and immediately detect loss of revenue by un-scrupulous registered dealers. The training provided by the Government has not yet equipped/skilled the Officers and staff to the desired level as is needed for correct implementation of GST, expecting guidance to the small taxpayers is a farfetched dream.

19. Most important of all, range of technical glitches need to be fixed. The software systems in use are too complex for individuals and modest businesses, and input credits are hard to get. Moreover, the GST Authority’s at the District or Zone level or even at the State level has no power at all to resolve any of the grievances which are increasing troubles of the taxpayers. The resolution of the dispute even with the satisfaction and consent of the Jurisdictional Authority at the local level is not permitted at all, the tax-payer cannot rectify any genuine mistake happened during filing of any of the complicated forms regularly required to be submitted online.

4. CONCLUSION

Recently, the Government on 24th June, 2020, by Notification extended the operation of power to issue ‘Removal of Difficulties Orders’ by a further period of two years, beyond 1st July 2020 which proves beyond doubt that the GST Council itself admits that GST has not yet been stabilized even-after passing of three years, as this time period was envisaged when GST was adopted by Indian Parliament.

The extensive impediments which have been faced by the law have not gone unnoticed by the eyes of various Courts of India. The bench of Madras High Court constituting of Dr. J. Anita Sumanth in the case of M/s. Samrajyaa and Co. v. Deputy Commr of GST & CE in paragraph 5 mentions that “the era of GST is in a nascent stage and both the Department as well as assessees are still learning the ropes …it is common knowledge that assessees pan India are facing difficulties in accessing the system and uploading Forms to seek transition of credit…” Further, the Delhi HC in the case of Sales Tax Bar Association (Regd.) v. Union of India recognized the technical issues faced by the portal and provided further instructions on improving the efficacy and reach of the portal. Also, in the recent Delhi High Court decision of the Brand Equity Treaties, it was observed in paragraph 15 that “realizing that Respondent’s network and system, and the change, had posed multifarious problems that require a reasonable approach. …This is palpably evident from the sheer number of cases being presented before us, in relation to such technical difficulties and inadequacies. The benchmark, in our view, is that the online system brought into force by the GSTN Ltd. should be able to perform all functions and should have all flexibilities/ options, which were available in the pre-GST regime. The problems on the GSTN cannot be wished away and have to be resolved in the right earnest. This requires sensitivity on the part of the Government which has, unfortunately, not been exhibited in adequate measure.”

Hence, keeping the above extensive list of issues in mind as have been experienced by the businesses & industries in the implementation phases, it would not be wrong to admit that 3 years is a sufficient time for new GST regime to stabilize, but unfortunately India is still struggling with this new law and now onwards will be losing the precious time to firmly stand as a global economic power. A legislative reform coupled with a robust technical reorganization with minimal glitches, which shapes the basic machinery for immaculate implementation of the GST law is required on the present date.