Transitional Provisions Under Draft Model GST Law

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The long journey of Good & Service Tax law which is flagged off during the captainship of Sh. Atal Bihari Vajpayee Ji, the then prime minister of India, in 2000 via setting up of a committee headed by the then finance minister of West Bengal, Sh. Asim Dasgupta Ji, to design the GST model and put in place the back-end technology and logistics for its implementation; is now appearing to be completed during the leadership of Sh. Narendra Modi Ji.

During the implementation phase of this new taxing statute, the transitional period would be the most crucial time period wherein various impugned Central Laws/State Laws shall be subsumed in a single statute viz. GST and the books of accounts that have been maintained rely upon the principle of ‘Going Concern’ would be ushered towards the era of GST.

Extending support from the Draft Model GST Law, the various legal provisions contained in Chapter-XXV of this draft model vis-à-vis metamorphosis from the existing regime of various indirect taxes towardsthe umbrella of GST has been discussed as follows:

 

  1. GST Officers or Competent Authorities

The person already appointed, for discharging the functions entrusted by the Central Law or State Law which are now being subsumed in GST, shall be deemed to be the GST Officers or the Competent Authorities under the legal provisions of CGST/SGST/IGST Law.

  1. Migration of Existing Taxpayers to GST

Prior to getting final registration under this new taxing statute, the existing registered person under Central Law/State Law shall be issued a provisional registration certificate for a period of six (6) months during which various prescribed information are required to be submitted before the GST Officers.

Post receipt of requisite information, the final registration certificate shall be issued by Central/State Government.

Contrary to this, no final certificate of registration shall be issued, if an application has been made by the existing taxpayer submitting the fact of their non-taxing supply under the pool of GST ambit which make them non-liable to take registration.

  1. Treatment of balance of CENVAT Credit Availed or Unavailed on Appointed Date

C.1. Treatment of Availed CENVAT Credit

Registered taxable person shall be eligible to take credit of the CENVAT Credit/VAT-ITC carried forward by them in the return furnished for the period ended with the day immediately preceding the appointed date.

This eligibility is connected with the vital condition that such impugned CENVAT Credit/VAT-ITC is admissible for creditboth under provisions of the earlier law as well as eligible as ITC under the proposed bag of GST.

C.2. Treatment of Unavailed CENVAT Credit

Unavailed CENVAT Credit/Vat-ITC on capital goods which is not carried forward in the last return submitted in the earlier law by virtue of covenant vis-à-vis availing full credit in the same F.Y., shall be admissible as ITC in the eyes of GST subject to the fulfilment of condition that this transferred ITC is eligible as credit both under the earlier law as well as under GST.

  1. Treatment of Duties/Taxes in respect of Stock Available on Appointed Date

The credit of eligible ‘duties and taxes’ in respect of:

  • Inputs held in stock,
  • Inputs contained in semi-finished goods in stock or
  • Inputs contained in finished goods in stock on the appointed date

Shall also beavailable to below mentioned three (3) categories of assessee subject to the compliance of infra mentioned conditions:

  1. Person who was not liable to be registered under the earlier law but falls under the charging section of proposed GST or
  2. Person who was engaged in the manufacture of exempted goods under the earlier law but in GST, falls under the taxable supply of goods.
  3. Person who has opted for composition scheme in the earlier law but registered as normal taxable person in the GST regime.

Now, below mentioned conditions are sine qua non for this registered taxable person under GST to take credit, in their electronic credit ledger, of these eligible ‘duties and taxes’ on inputs-goods held in opening stock:

  • Use for Taxing Supply

Such goods are used or intended to be used for making taxable supply under GST,

  • Competent ITC

Under both law i.e. in the earlier law as well as in the upcoming GST, credit concomitant with such stock falls under the category of competent ITC.

  • Documentary Evidence of Payment

Credit would be admissible subject to the possession of requisite invoice or other prescribed documents evidencing payment of duty/tax under earlier law.

  • Time Limitation

Such invoice must be issued not earlier than one (1) year preceding to the appointed date of GST.

  • GAAP

Computation of credit shall be done as per GAAP.

  1. Switching from Normal Taxpayer to Composition One

If any registered taxpayer under existing statute opted for composition scheme in GST, the amount equivalent to credit of input tax in respect to:

  • Inputs held in stock,
  • Inputs contained in semi-finished goods in stock or
  • Inputs contained in finished goods in stock on the appointed date

Is required to paid via debit in electronic credit ledger and post debit of this amount, if any balance of tax still prevails then such lying balance shall be lapsed in GST.

  1. Return of Goods on or after Appointed Date

Return of goods which were originally removed/sent not earlier than six (6) months before the appointed date shall not attract tax under GST legal provision subject to the condition that such goods are returned within a period of six (6) months of GST applicability.

Post completion of six (6) months’ time period from appointed date, return of any goods would raise obligation on the person returning the goods to tax such return of goods as supply provided that supply of such goods falls under the taxing room of GST.

  1. Price Revisions on or after Appointed Date

Issuance of supplementary invoices in pursuance of price revision shall be deemed to have been issued in respect of an outward supply made under the net of GST subject to the compliance of below mentioned conditions:

  1. Contract for supply of goods entered prior to appointed date of GST,
  2. Price revision takes place after the implementation of GST and
  3. Such supplementary invoices must be issued within a period of thirty (30) days from such revision.

Upward Revision

Supplier of goods shall be liable to charge CGST/SGST/IGST on such supplementary invoice raised within the stipulated time period.

Downward Revision

Supplier of goods shall be liable to reduce their CGST/SGST/IGST liability in lieu of issuance of such supplementary invoice provided that the receiver of such supplementary invoices has also correspondingly reduced their input tax credit.

  1. Recovery or Refund pursuant to Assessment or Adjudication

Below mentioned is the treatment of the amount to be recovered or to be refunded in lieu of assessment or adjudication undertaken for any year ended prior to the appointed date.

Calling Recovery

If any amount of tax, interest, fine or penalty becomes recoverable from the taxable person then the same shall be recovered as an arrear of tax under this GST Act and the amount so recovered shall not be admissible as input tax credit.

Calling Refund

If any amount of tax, interest, fine or penalty becomes refundable to the taxable person then the same shall be refundable to them under the earlier law and not under this GST Act.

 

  1. Recovery or Refund pursuant to Revision of Returns

Below mentioned is the treatment of the amount to be recovered or to be refunded in lieu of revision of return filed for the period ended prior to the appointed date.

Calling Recovery

If any amount becomes recoverable from the taxable person, then the same shall be recovered as an arrear of tax under this GST Act and the amount so recovered shall not be admissible as input tax credit.

Calling Refund

If any amount becomes refundable to the taxable person, then the same shall be refundable to them under the earlier law and not under this GST Act.

  1. Treatment of Long-term Construction or Work Contracts

Pursuant to contract executed before the introduction of GST regime, the supply of goods or services on or after the appointed date of GST shall be considered as supply made under the web of GST and consequently, the liability to tax arises as per the legal provision of CGST/SGST/IGST law.

  1. Progressive or Periodic Supply of Goods or Services

Supply of good and/or service does not attract GST liability:

  1. If consideration in lieu of such supply has been received prior to the appointed date and
  2. Duty or tax liability thereon has already been paid under earlier law.
  3. Return of Goods Sent on Approval Basis on or after Appointed Date

Return of goods which were sent on approval basis not earlier than six (6) months before the appointed date shall not attract tax under GST legal provision subject to the condition that such goods are returned within a period of six (6) months of GST applicability.

Obligation on Person Returning the Goods

Post completion of six (6) months’ time period from appointed date, return of any such goods would raise obligation on the person returning the goods to tax such return of goods as supply provided that supply of such goods falls under the taxing room of GST.

Obligation on Person Originally Sent Goods on Approval Basis

Person who has sent the goods on approval basis is liable to pay tax under GST:

  • If such goods are liable to tax under GST and
  • Goods are not returned within a period of six (6) months from the appointed date.
  1. Deduction of Tax at Source

No deduction of tax at source under thecave of GST shall arise on makingthe payment tothe supplier subject to the compliance of following three (3) limbs:

  1. Payment made is in pursuance of saleexecuted in the earlier law,
  2. Such sale attracts tax deduction at source under the legal provision of earlier law and
  3. Event of issuance of invoice also occurs before this appointed date.

 

Complied by CA Harsh Garg