Making GST work for India Inc

Litigation may stonewall economic reforms’

Businesses have only 240 days to realign their systems and processes in line with the new indirect tax regime in the country. Experts share their views on the steps that will help them become GST- ready

An important objective of the proposed Goods and Services Tax ( GST) is to ensure a uniform tax base, same or similar tax rates, and aharmonised tax regime in India, which would unify India into a single market. However, under the Indian federal system, such need for harmonisation is often in conflict with the principles of fiscal autonomy enshrined in the Constitution.

To achieve a balance between these competing principles, the Constitution ( 122nd Amendment) Bill, 2014, ( GST Bill) proposes setting up of a GST Council, comprising the finance minister ( FM), minister of state in charge of revenue, and state FMs. Among other things, the Council would make suggestions on important issues such as tax base, tax rates, exemptions and model legislations.

In the Indian political scenario, the recommendation made by the Council may lead to inter sedisputes between the Centre and states. Therefore, an appropriate dispute resolution mechanism should be put in place to ensure harmonised GST laws. To deal with such disputes, Article 279A ( 11) of the GST Bill confers powers on the GST Council to establish the mechanism to adjudicate any such dispute, which arise out of the suggestions of the Council.

While the need for having a strong inter se dispute redressal system cannot be emphasised enough, it cannot be overruled that Article 279A ( 11) in its present form could raise various contentious constitutional and legal questions.

The first question is whether the recommendation by this executive/ administrative body ( even though constitutional) can be binding on the Centre and the states. In case such, recommendations are made absolutely binding, without any degree of tolerance or fiscal freedom, the same would be open to constitutional challenge on the ground that the GST Council has been given overriding supremacy over Parliament and the state legislature, which is against the basic structure of the Constitution.

For the same reasons, if an otherwise valid legislation enacted by Parliament or state legislature is subjected to scrutiny by the Council on the ground the same deviates from its recommendations, such scrutiny may also not be free from constitutional challenge. Secondly, the provision in its present form might also be in violation of the basic principle of natural justice as GST Council has been given the powers to adjudicate the disputes arising from its own recommendation.

Thirdly, under Article 131 of the Constitution, the SC has been granted an exclusive jurisdiction for any dispute between the Centre and states. Accordingly, creation of any alternative dispute resolution mechanism without having sufficient constitutional sponsorship may also be open to constitutional challenge.

In view of the above, it is hoped the legislature would foresee the possible challenges to the dispute resolution mechanism in the present form and ensure the important economic reforms would not get stonewalled because of prolonged litigation into constitutional propriety. In any case, it is desirable that the Centre and state governments respect the GST Council as a consensus building platform.

Business Standard New Delhi, 08th August 2016

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