Gateway to GST - 122nd Constitutional Amendment Bill, 2014

Present

Proposed

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1. Notwithstanding anything contained in Articles 246 and 254, Parliament, and, subject to clause (2), the Legislature of every State, have power to make laws with respect to goods and services tax imposed by the Union or by such State.

2. Parliament has exclusive power to make laws with respect to goods and service tax where the supply of goods, or of services, or both takes place in the course of inter-state trade or Commerce.

Explanation: The provisions of this article, shall, in respect of goods and services referred to in clause (5), of Article 279A, take effect from the date recommended by the Goods and Services Tax Council.

Effect of Proposed Amendment:

The proposed Article empowers the Parliament and the Legislature of each State to make laws with respect to goods as well as services.

However, where the supply of goods, or of services, or both takes place in the course of Inter-State Trade or Commerce, only the Parliament has exclusive power to make laws.

On petroleum crude, high speed diesel, motor spirit (commonly known as petrol), natural gas and aviation turbine fuel, GST will be made applicable from the date recommended by the GST Council.

Present

Proposed

Parliament has exclusive power to make any law with respect to any matter not enumerated in the Concurrent List or State List.

Subject to Article 246A, Parliament has exclusive power to make any law with respect to any matter not enumerated in the Concurrent List or State List.

Effect of Proposed Amendment:

The proposed amendment in the Article is to pave the way for introduction of GST. Now, the Parliament will not have exclusive power to levy GST; both the Parliament and the Legislature of each State would have powers to make law on GST, though the same is not mentioned in the Concurrent List.

Present

Proposed

Notwithstanding anything in the foregoing provisions of this Chapter, if the Council of States has declared by resolution supported by not less than two-thirds of the members present and voting that it is necessary or expedient in the national interest that Parliament should make laws with respect to any matter enumerated in the State List specified in the resolution, it shall be lawful for Parliament to make laws for the whole or any part of the territory of India with respect to that matter while the resolution remains in force.

Notwithstanding anything in the foregoing provisions of this Chapter, if the Council of States has declared by resolution supported by not less than two-thirds of the members present and voting that it is necessary or expedient in the national interest that Parliament should make laws with respect to goods and service tax provided under Article 246A or any matter enumerated in the State List specified in the resolution, it shall be lawful for Parliament to make laws for the whole or any part of the territory of India with respect to that matter while the resolution remains in force.

Effect of Proposed Amendment:

The proposed amendment in the Article would confer additional power to the Parliament to make laws in respect of GST. However, such powers can be exercised only if the Council of State passes resolution supported by not less than two-third of the members present and voting.

Present

Proposed

Notwithstanding anything in this Chapter, Parliament shall, while a Proclamation of Emergency is in operation, have power to make laws for the whole or any part of the territory of India with respect to any of the matters enumerated in the State List.

Notwithstanding anything in this Chapter, Parliament shall, while a Proclamation of Emergency is in operation, have power to make laws for the whole or any part of the territory of India with respect to goods and service tax provided under Article 246A or any of the matters enumerated in the State List.

Effect of Proposed Amendment:

The proposed amendment in the Article would confer powers to the Parliament to make law in respect of GST when emergency is in operation.

Present

Proposed

Such stamp duties and such duties of excise on medicinal and toilet preparations as are mentioned in the Union List shall be levied by the Government of India but shall be collected-

(a) in the case where such duties are leviable within any Union Territory, by the Government of India, and

(b) in other cases, by the States within which such duties are respectively leviable.

Such stamp duties as are mentioned in the Union List shall be levied by the Government of India but shall be collected-

(a) in the case where such duties are leviable within any Union Territory, by the Government of India, and

(b) in other cases, by the States within which such duties are respectively leviable.

Effect of Proposed Amendment:

The proposed amendment in the Article is made as the levy of excise duties on medicinal and toilet preparations would be discontinued and the same would be subsumed in GST.

Present

Proposed

1. Taxes on services shall be levied by the Government of India and such tax shall be collected and appropriated by the Government of India and the States in the manner provided in clause (2).

2. The proceeds in any financial year of any such tax levied in accordance with the provisions of clause (1) shall be—

a. collected by the Government of India and the States;

b. appropriated by the Government of India and the States,

in accordance with such principles of collection and appropriation as may be formulated by Parliament by law.

- Omitted -

Effect of Proposed Amendment:

Article 268A was inserted in 2003 to enable levy of service tax by the Parliament and the proceeds were shared by the Central Government with the States. In view of subsuming service tax under GST, the power to levy GST would be distributed to the Central Government and the State Governments. Thus, this article being redundant is proposed to be omitted.

Present

Proposed

Taxes on the sale or purchase of goods and taxes on the consignment of goods shall be levied and collected by the Government of India but shall be assigned and shall be deemed to have been assigned to the States on or after the 1st day of April, 1996 in the manner provided in clause (2).

Taxes on the sale or purchase of goods and taxes on the consignment of goods except as provided in Article 269A shall be levied and collected by the Government of India but shall be assigned and shall be deemed to have been assigned to the States on or after the 1st day of April, 1996 in the manner provided in clause (2).

Effect of Proposed Amendment:

The proposed amendment in the Article specifies that in respect of GST in course of Inter-State Trade or Commerce (i.e. IGST) the levy, collection and apportionment shall be in the manner specified in the new Article 269A proposed to be inserted. This is a consequential amendment to pave the way for introduction of GST.

Present

Proposed

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1. Goods and services tax on supplies in the course of inter-State trade or commerce shall be levied and collected by the Government of India and such tax shall be apportioned between the Union and the States in the manner as may be provided by Parliament by law on the recommendations of the Goods and Services Tax Council.

Explanation: For the purposes of this clause, supply of goods, or of services, or both in the course of import into the territory of India shall be deemed to be supply of goods, or of services, or both in the course of inter-State trade or commerce.

2. Parliament may, by law, formulate the principles for determining the place of supply, and when a supply of goods, or of services, or both in the course of inter-State trade or commerce.

Effect of Proposed Amendment:

The proposed Article empowers only the Parliament to levy GST on Inter-State Trade or Commerce (i.e. IGST) of goods and services. However, such tax would be apportioned between the Central Government and the State Governments in a manner which may be RECOMMENDED by GST Council.

The proposed Article also empowers only the Parliament to formulate Place of Supply Rules to determine whether a transaction is in course of Inter-State Trade or Commerce or otherwise.

Present

Proposed

1. All taxes and duties referred to in the Union List, except the duties and taxes referred to in Articles 268, 268A and 269 respectively, surcharge on taxes and duties referred to in Article 271 and any cess levied for specific purposes under any law made by Parliament shall be levied and collected by the Government of India and shall be distributed between the Union and the States in the manner provided in clause (2).

1. All taxes and duties referred to in the Union List, except the duties and taxes referred to in Articles 268, 269 and 269A respectively, surcharge on taxes and duties referred to in Article 271 and any cess levied for specific purposes under any law made by Parliament shall be levied and collected by the Government of India and shall be distributed between the Union and the States in the manner provided in clause (2).

(1A) The goods and services tax levied and collected by the Government of India, except the tax apportioned with the States under clause (1) of Article 269A, shall also be distributed between the Union and the States in the manner provided in clause (2).

Effect of Proposed Amendment:

The proposed amendment in the Article specifies that distribution of GST on Inter-State Trade or Commerce (i.e. IGST) of goods and services would be excluded from the scope of Article 270 since the manner of sharing with the States would be as determined by Parliament by law on the recommendations of the GST Council in terms of Article 269A.

It is further provided that the share accruing to the Union Government in from of CGST collected on Intra-State Trade or Commerce would be distributed to the States in the manner specified in Article 270(2). This is a consequential amendment to pave the way for introduction of GST.

Present

Proposed

Notwithstanding anything in Articles 269 and 270, Parliament may at any time increase any of the duties or taxes referred to in those articles by a surcharge for purposes of the Union and the whole proceeds of any such surcharge shall form part of the Consolidated Fund of India.

Notwithstanding anything in Articles 269 and 270, Parliament may at any time increase any of the duties or taxes referred to in those articles except the goods and service tax under Article 246A by a surcharge for purposes of the Union and the whole proceeds of any such surcharge shall form part of the Consolidated Fund of India.

Effect of Proposed Amendment:

The proposed amendment in the Article will not authorize the Parliament unilaterally to increase the GST by imposing surcharge.

Present

Proposed

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1. The President shall, within 60 days from the date of commencement of the Constitution (One Hundred and Twenty-Second Amendment) Act, 2014, by order, constitute a Council to be called the Goods and Services Tax Council.

2. The Goods and Services Tax council shall consist of the following members, namely:-

a. The Union Finance Minister – Chairperson;

b. The Union Minister of State in charge of Revenue or Finance – Member;

c. The Minister in charge of Finance or Taxation or any other Minister nominated by each State Government – Members

2. The Members of the Goods and Services Tax Council referred to in sub-clause (c) of clause (2) shall, as soon as may be, choose one amongst themselves to be the Vice-Chairperson of the Council for such period as they may decide.

3. The Goods and Services Tax Council shall make recommendations to the Union and the States on

a. the taxes, cesses and surcharges levied by the Union, the States and the local bodies which may be subsumed in the goods and services tax;

b. the goods and services that may be subjected to, or exempted from the goods and services tax;

c. model Goods and services Tax Laws, principles of levy, apportionment of Integrated Goods and Services Tax and the principles that govern the place of supply;

d. the threshold limit of turnover below which goods and services may be exempted from goods and services tax;

e. the rates including floor rates with bands of goods and services tax;

f. any special rate or rates for a specified period, to raise additional resources during any natural calamity or disaster;

g. special provision with respect to the States of Arunachal Pradesh, Assam, Jammu and Kashmir, Manipur, Meghalaya, Mizoram, Nagaland, Sikkim, Tripura, Himachal Pradesh and Uttarakhand; and

h. any other matter relating to the goods and service tax, as the Council may decide.

4. The Goods and Service Tax Council shall recommend the date on which the goods and services tax be levied on petroleum crude, high speed diesel, motor spirit (commonly known as petrol), natural gas and aviation turbine fuel.

5. While discharging the functions conferred by this article, the Goods and Service Tax Council shall be guided by the need for a harmonised structure of goods and services tax for the development of a harmonised national market for goods and services.

6. One half of the total number of Members of the Goods and Services Tax Council shall constitute the quorum at its meetings.

7. The Goods and Services Tax Council shall determine the procedure in the performance of its functions.

8. Every decision of the Goods and Services Tax Council shall be taken at a meeting by a majority of not less than three-fourths of the weighted votes of the members present and voting, in accordance with the following principles, namely:-

a. the vote of the Central Government shall have a weightage of one-third of the total votes cast,

b. the votes of all State Government taken together shall have a weightage of two-thirds of the total votes cast, in that meeting.

9. No act or proceedings of the Goods and Services Tax Council shall be invalid merely by reason of

a. Any vacancy in, or any defect in, the constitution of the Council; or

b. Any defect in the appointment of a person as a member of the Council; or

c. Any procedural irregularity of the Council not affecting the merits of the case.

10. The Goods and Service Tax Council may decide about the modalities to resolve disputes arising out of its recommendations.

Effect of Proposed Amendment:

The proposed Article states that GST Council shall be formulated for the purpose of governing the matters related to GST. There are various clauses to this particular article, which provides the structure of the council, functions of the council, etc. The GST Council shall make RECOMMENDATIONS to the Union and the States on GST, threshold limit for GST, etc.

Present

Proposed

1. No law of a State shall impose, or authorise the imposition of, a tax on the sale or purchase of goods where such sale or purchase takes place-
   1. outside the State; or
   2. in the course of the import of the goods into, or export of the goods out of, the territory of India.
2. Parliament may by law formulate principles for determining when a sale or purchase of goods takes place in any of the ways mentioned in clause (1).
3. Any law of a State shall, in so for as it imposes, or authorises the imposition of,-
   1. a tax on the sale or purchase of goods declared by Parliament by law to be of special importance in inter-State trade or commerce; or
   2. a tax on the sale or purchase of goods, being a tax of the nature referred to in sub-clause (b), sub-clause (c) or sub-clause (d) of clause (29A) of Article 366,

be subject to such restrictions and conditions in regard to the system of levy, rates and other incidents of the tax as Parliament may by law specify

1. No law of a State shall impose, or authorise the imposition of, a tax on the supply of goods or of services or both, where such supply takes place-
   1. outside the State; or
   2. in the course of the import of the goods into, or export of the goods goods or services or both out of, the territory of India.
2. Parliament may by law formulate principles for determining when a supply of goods or of services or both, where such supply takes place in any of the ways mentioned in clause (1).
3. - Omitted -

Effect of Proposed Amendment:

The proposed amendment in the Article is in line with the proposed GST by specifying “the supply of goods or of services or both, where such supply takes place” instead of “the sale or purchase of goods where such sale or purchase takes place”.

• Clause (1) is proposed to be amended so that inter-state transactions, import and export of goods or services or both will not be taxed by the State Government. The Central Government would levy tax on such transactions.
• Clause (2) is proposed to be amended so that Parliament formulates the principles where a supply of goods or of services or of both takes place i.e. only Parliament may formulate Place of Supply Rules for whole of India.
• Clause (3) is proposed to be omitted as there would be no “Declared Goods” in the proposed GST.

Present

Proposed

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Article 366(12A): “Goods and Services Tax” means any tax on supply of goods, or services, or both except taxes on the supply of the alcoholic liquor for human consumption

Article 366(26A): “Services” means anything other than goods

Article 366(26B): “State” with reference to articles 246A, 268, 269, 269A and article 279A includes a Union territory with Legislature

Effect of Proposed Amendment:

New definitions are proposed to be introduced.

• Levy of tax on alcoholic liquor for human consumption is outside the scope of GST. 
• “Services” is defined to mean anything other than Goods.
• “State” will include a Union Territory also.

Present

Proposed

Article 366(29A): “Tax on the sale or purchase of goods” includes

1. a tax on the transfer, otherwise than in pursuance of a contact, of property in any goods for cash, deferred payment or other valuable consideration;
2. a tax on the transfer of property in goods (whether as goods or in some other form) invoked in the execution of a works contract;
3. a tax on the delivery of goods on hire purchase or any system of payment by instalments;
4. a tax on the transfer of the right to use any goods for any purpose (whether or not for a specified period) for cash, deferred payment or other valuable consideration;
5. a tax on the supply of goods by any unincorporated association or body of persons to a member thereof for cash, deferred payment or other valuable consideration;
6. a tax on the supply, by way of or as part of any service or in any other manner whatsoever, of goods, being food or any other article for human consumption or any drink (whether or not intoxicating), where such supply or service, is for cash, deferred payment or other valuable consideration, and such transfer, delivery or supply of any goods shall be deemed to be a sale of those goods by the person making the transfer, delivery or supply and a purchase of those goods by the person to whom such transfer, delivery or supply is made;

- Omitted -

Effect of Proposed Amendment:

Definition of “tax on sale or purchase of goods” is proposed to be omitted as after the implementation of GST no differentiation will be made between goods and services.

Present

Proposed

An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it, shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill:

Provided that if such amendment seeks to make any change in-

1. Article 54, Article 55, Article 73, Article 162 or Article 241, or
2. Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or
3. any of the Lists in the Seventh Schedule, or
4. the representation of States in Parliament, or
5. the provisions of this article,

the amendment shall also require to be ratified by the Legislatures 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.

An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it, shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill:

Provided that if such amendment seeks to make any change in-

1. Article 54, Article 55, Article 73, Article 162, Article 241 or Article 279A, or
2. Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or
3. any of the Lists in the Seventh Schedule, or
4. the representation of States in Parliament, or
5. the provisions of this article,

the amendment shall also require to be ratified by the Legislatures 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.

Effect of Proposed Amendment:

The proposed amendment in the Article is to ensure that any change in the constitution of GST Council (constituted under Article 279A) would have to be passed through Parliament and through State Legislatures as the same requires approval of 50% of the State Legislatures.

Present

Proposed

The District Council for an autonomous district shall have the power to levy and collect all or any of the following taxes within such district, that is to say-

1. taxes on professions, trades, callings and employments;
2. taxes on animals, vehicles and boats;
3. taxes on the entry of goods into a market for sale therein, and tolls on passengers and goods carried in ferries; and
4. taxes for the maintenance of schools, dispensaries or roads.

The District Council for an autonomous district shall have the power to levy and collect all or any of the following taxes within such district, that is to say-

1. taxes on professions, trades, callings and employments;
2. taxes on animals, vehicles and boats;
3. taxes on the entry of goods into a market for sale therein, and tolls on passengers and goods carried in ferries;
4. taxes for the maintenance of schools, dispensaries or roads and
5. taxes on entertainment and amusements

Effect of Proposed Amendment:

In the proposed clause, power to levy taxes on entertainment and amusements is inserted, thus expanding the scope of imposing taxes by the District Council.

Present

Proposed

Duties of excise on tobacco and other goods manufactured or produced in India except

1. alcoholic liquors for human consumption
2. opium, Indian hemp and other narcotic drugs and narcotics,

but including medicinal and toilet preparations containing alcohol or any substance included in sub-paragraph (b) of this entry.

Duties of excise on the following goods manufactured or produced in India namely:-

- Petroleum crude;

- High speed diesel;

- Motor spirit (commonly known as petrol);

- Natural gas;

- Aviation turbine fuel; and

- Tobacco and tobacco products;

Effect of Proposed Amendment:

The proposed amendment is to keep the above mentioned 6 goods out of GST till the time a date is recommended by GST Council. Thus, the manufacture and sale of petroleum products will attract Central Excise Duty and VAT respectively. And the manufacture and supply of tobacco products will attract Central Excise Duty in addition to GST.

Present

Proposed

Taxes on the sale or purchase of newspapers and on advertisements published therein

- Omitted -

Effect of Proposed Amendment:

The proposed amendment withdraws the power of the Central Government to levy taxes on the sale or purchase of newspapers and on advertisements published therein.

Present

Proposed

Taxes on services

- Omitted -

Effect of Proposed Amendment:

The proposed amendment withdraws the power of the Central Government to levy taxes on services.

Present

Proposed

Taxes on the entry of goods into a local area for consumption, use or sale therein.

- Omitted -

Effect of Proposed Amendment:

The proposed amendment withdraws the power of the State Government to levy taxes on the entry of goods into a local area for consumption, use or sale therein.

Present

Proposed

Taxes on the sale or purchase of goods other than newspapers, subject to the provisions of entry 92A of List I

Taxes on the sale of petroleum crude, high speed diesel, motor spirit (commonly known as petrol), natural gas, aviation turbine fuel and alcoholic liquor for human consumption, but not including sale in the course of inter-State trade or commerce or sale in the course of international trade or commerce of such goods.

Effect of Proposed Amendment:

The proposed amendment is to keep the above mentioned 6 goods out of GST till the time a date is recommended by GST Council. Thus, the manufacture and sale of petroleum products will attract Central Excise Duty and VAT respectively. And the manufacture and sale of alcohol will attract State Excise Duty and VAT respectively.

However inter-state sales, import and export of petroleum products and alcohol would not be covered under VAT.

Present

Proposed

Taxes on advertisements other than advertisements published in the newspapers and advertisements broadcast by radio or television

- Omitted -

Effect of Proposed Amendment:

The proposed amendment withdraws the power of the State Government to levy taxes on advertisements as such tax would be subsumed in GST.

Present

Proposed

Taxes on luxuries, including taxes on entertainments, amusements, betting and gambling.

Taxes on entertainments and amusements to the extent levied and collected by a Panchayat or a Municipality or a Regional Council or a District Council.

Effect of Proposed Amendment:

The proposed amendment gives the power of the State Government only to levy taxes on entertainments and amusements and the same would be collected by a Panchayat or a Municipality or a Regional Council or a District Council.