Minutes of the 10th GST Council Meeting held on 18 February 2017
10th CST Council Meeting Dated:- 18-2-2017 GST Council – Minutes
GST
Minutes of the 10th GST Council Meeting held on 18 February 2017
The tenth meeting of the GST Council (hereinafter referred to as 'the Council') was held on 18 February 2017 in Hotel Radisson Blu, Udaipur, Rajasthan, under the Chairpersonship of the Hon'ble Union Finance Minister, Shri Arun Jaitley. The list of the Hon'ble Members of the Council who attended the meeting is at Annexure 1. The list of officers of the Centre (including the Ministry of Law), the States, the GST Council and the Goods and Services Tax Network (GSTN) who attended the meeting is at Annexure 2.
2. The following agenda items were listed for discussion in the tenth meeting of the Council
1. Confirmation of the Minutes of the 9th GST Council Meeting held on 16 January 2017
2. Approval of the Draft Compensation Law as modified in accordance with the dec
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bers on the draft Minutes of the 9th Council Meeting (hereinafter called the 'Minutes') held on 16 January 2017 before its confirmation.
4.1 The Secretary to the Council (hereinafter referred to as 'Secretary') informed that a letter had been received from the Government of Odisha suggesting that the version of Shri Tuhin Kanta Pandey, Principal Secretary (Finance), Odisha recorded in paragraph 21 of the Minutes be replaced with the following version – “Shri Tuhin Kanta Pandey, Principal Secretary (Finance), Odisha stated that there should be no diffused accountability except for enforcement and that a fixed proportion of dealers should be assigned to the Central and the State tax administrations. He added that option may also be made available to any State if it wishes to be allocated 100% taxpayers below the turnover of Rs. 1.5 crore subject to the overall share/proportion of dealers allocated to a State.” The Council agreed to replace the version of the Principal Se
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trative purposes. The Hon'ble Minister from West Bengal stated that it would be appropriate to insert the word 'all' before the expression 'administrative control' in paragraph 28(ii) of the Minutes as was done in paragraph 28(i). The Hon'ble Minister from Telangana suggested to add the word 'all' before the expression 'administrative control' in paragraph 28(iii) of the Minutes as well. The Council agreed to the suggested changes in the Minutes.
4.3. The Chairman, Central Board of Excise and Customs (CBEC) stated that the Council's decision in its 9th Meeting to vest administrative control of 90% of taxpayers having turnover below Rs. 1.5 crore with the States (recorded in paragraph 28(ii) of the Minutes) led to a highly skewed distribution of work and that there was a perception that this distribution was loaded against the Centre. He informed that this had led to unease and concern in the CBEC cadre and requested that either the distribut
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States decided to adopt their own model of distribution of work, then there was no point in deciding the issue in the Council and that if each State decided to have its own arrangement, then there would be chaos. The Hon'ble Minister from Punjab responded that the principle of 90%:10% division between the States and the Centre respectively, as decided by the Council, shall remain valid and there could be a deviation only when a State agreed for the same. The Hon'ble Minister from West Bengal cautioned that no such window should be kept open.
4.5. The Hon'ble Minister from Kerala stated that the Minutes should reflect the decision of the Council and any new issues could be discussed later. He observed that in the 9th Meeting of the Council, it was agreed that States would have control over 90% of the taxpayers having turnover below Rs. 1.5 crore for audit purpose and that there was no decision in respect of the points recorded in paragraph 28(iv) ('those States wanting
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rore was very large but the revenue yield was not much. This arrangement only gave flexibility to States. The Hon'ble Minister from Bihar stated that such a relaxation was not desirable and it went against the vision of one country, one model, one tax. The Hon'ble Minister from Karnataka stated that the Hon'ble Deputy Chief Minister of Gujarat had suggested in the 9th meeting of the Council that different models for distribution of work between the Centre and the States be kept but this was not agreed upon. He stated that the understanding was that the number of taxpayers to be distributed between the Centre and the States for taxpayers with turnover below Rs. 1.5 crore would be worked out on the basis of the formula of 90%: 1 0% and those above the turnover of Rs. 1.5 crore on the basis of the formula of 50%:50% and that the sum total of this number shall remain fixed. The pattern of distribution of taxpayers between the Central and State tax administration in a State coul
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ered. The Hon'ble Minister from Bihar also stated that the ratio of 90%:10% should not be changed. The Hon'ble Chairperson observed that change in the ratio of distribution for taxpayers with turnover below Rs. 1.5 crore and the corresponding change in distribution of taxpayers with turnover above Rs. 1.5 crore was a flexibility which a State could exercise only upon its consent and in its absence, the distribution ratio of 90%:10% would prevail. The Hon'ble Minister from Jammu & Kashmir suggested that in order to give flexibility in distribution of taxpayers, in paragraph 28(v), after the expression 'stratified random sampling', the following could be added: “or if the State so decides, on a negotiated basis, … ” The Hon'ble Minister from Bihar observed that once numbers were decided, no flexibility should be allowed.
4.7. The Hon'ble Minister from Telangana observed that the tax administrations of the Centre and the States needed to work together and pr
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with increased workload and they could use this flexibility to give a larger number of smaller taxpayers to the Central tax administration. He also observed that such a flexibility could help assuage the feeling of the CBEC cadre and that it was not desirable that one set of bureaucracy remained very unhappy with the distribution of work. He added that any change in work distribution would be subject to agreement by the State and therefore such a flexibility be allowed to the States. The Hon'ble Minister from Kerala observed that if there were practical difficulties at the time of implementation, the decision could be revisited but it could not be inserted into the Minutes in this manner. The Hon'ble Minister from Telangana observed that both the Central and the State administrations needed to work together to increase the revenue and that not much revenue came from the taxpayers below the turnover of Rs. 1.5 crore.
4.8. The Hon'ble Deputy Chief Minister of Delhi informed
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ity across the country. The Hon'ble Chairperson stated that law would be uniform but States could have flexibility in the administrative arrangement.
4.9. The Hon'ble Minister from Karnataka stated that his State agreed with the flexibility proposed by the Hon 'ble Chairperson but that the Secretary's proposal was different. The Hon'ble Chairperson observed that the Secretary's proposal was made from a different point of view. The Hon'ble Minister from Jammu & Kashmir wondered why the Centre was keen to give this flexibility to the States when the States were not keen to have such flexibility. The Hon'ble Chairperson responded that this was to allow flexibility to those States that wanted more taxpayers with turnover above Rs. 1.5 crore in their jurisdiction. The Hon'ble Minister from Jammu & Kashmir suggested that in that case, the formulation that he had suggested earlier could be added to paragraph 28(v) and the decision as recorded in paragraph
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ved that such an apprehension was not correct as even he would not be able to persuade about ten to twelve ministers belonging to his party to change the ratio of distribution for taxpayers with turnover below Rs. 1.5 crore from 90%:10% to 50%:50%. He observed that some States might genuinely not want to focus on smaller taxpayers and they could use such flexibility. The Hon'ble Minister from Kerala observed that it was not so decided in the last Meeting. He informed that the Central Government officers met him in a delegation. He expressed an apprehension that such flexibility would lead to State-level negotiations leading to wrangling. He suggested that GST should be implemented first and based on experience, decisions could be modified and that the final goal should be how to maximise revenue. The Hon'ble Minister from Punjab stated that for modifying a decision, flexibility was needed. He suggested that another alternative could be that for one year, the ratio as decided in
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added that most new registrants would fall in the category of taxpayers with turnover below Rs. 1.5 crore. The Hon'ble Minister from Telangana stated that a new registrant would normally know his turnover at the time of starting his business. The Hon'ble Chairperson stated that it would be more practical that when a new registrant came in the tax-fold, he should be allocated to the Centre and the States in the ratio of 50%:50% and at the end of the year, if its turnover was below Rs. 1.5 crore, its allocation to the Central and State administration would be as per the 90%: 10% formula and if its turnover was above Rs. 1.5 crore, the allocation would be on the basis of 50%:50% formula. He suggested that the Minutes be modified suitably to reflect this arrangement. The Hon'ble Minister from West Bengal supported this suggestion. The Council agreed to the suggestion.
4.12. The Hon'ble Minister from West Bengal stated that the decisions recorded in paragraph 28(vii) ('
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uld be derived out of such switching. The Hon'ble Chairperson stated that vested interests could be created if there was a permanent division. He added that the Council could possibly decide to switch the administrative control of the taxpayers after three years and that this decision would rest with the Council. The Secretary stated that the switching over could be in three years or from time to time as decided by the Council. The Hon'ble Minister from West Bengal stated that switching could take place within the agreed formula. He stated that if a period of time was to be specified for switching or for reviewing the ratio of distribution of the taxpayers between the Centre and the States, it should be three years and not one year as suggested by the Hon 'ble Minister from Punjab. The Hon'ble Minister from Bihar stated that the period for switching or for reviewing the distribution of taxpayers between the Centre and the States should not be specified as the Council ha
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es. The Secretary suggested that since the expression 'all administrative purposes' was used in the decision recorded in paragraph 28(i), the word 'vertical' used in this paragraph could be deleted. The Council agreed to this suggestion.
4.14. The Hon'ble Minister from West Bengal stated that in the previous Meeting of the Council, the decision was only with regard to carve-out for 'place of supply' issues under the Integrated Goods and Services Tax (IGST) Act for the Central administration and that the decision recorded in paragraph 28(x) of the Minutes regarding carve-out relating to import or export of goods or services was not correct. The Hon 'ble Chairperson stated that the Customs domain was out of the States' purview and that while one concession had already been agreed upon in regard to supplies in territorial waters, it would not be possible to agree to another concession regarding delegation of functions under the Customs Act like refund,
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t of the CBEC paper circulated during the 9th Meeting of the Council and the same was recorded in paragraph 14 of the Minutes. The Hon'ble Deputy Chief Minister of Delhi reiterated that this issue needed to be discussed separately and should not be taken as concluded. The Hon'ble Chairperson read out the text of paragraph 14 of the Minutes and pointed out that all import and export-related functions were included in the paper circulated by CBEC. Shri Upender Gupta, Commissioner (GST Policy Wing), CBEC pointed out that presently, the V AT administrations decided the issue of export only up to the penultimate stage of export and not when goods were actually exported from a port.
4.16. The Hon'ble Minister from West Bengal pointed out that in paragraph 22 of the Minutes, while summing up the possible solutions for the agenda item relating to provisions for cross- empowerment to ensure single interface under GST, the Hon'ble Chairperson had indicated that IGST be cross-emp
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were not initially agreeable to allow only IGST to be paid on export and it was accepted subsequently with the understanding that States would also be empowered to administer IGST on exports. He pointed out that for refunding the tax on export, the certification would continue to come from the Customs department which would be accepted by the State administration. He also pointed out that if input tax credit (ITC) was used for paying IGST on export, the State administration would need to examine the input-output ratio for utilization of such ITC. He added that the States had agreed to treat supplies to Special Economic Zones (SEZs) as inter-State supplies on the understanding that the States would have the power to examine such supplies. The Hon'ble Chairperson stated that the CCT, Gujarat could suggest a formulation which would not disturb the powers vested under the Customs Act. Shri Ritvik Pandey, CCT, Karnataka stated that the Customs Department would continue to administer th
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ke refund of tax on export could not be carved out exclusively for the Central tax administration.
4.18. The Hon'ble Minister from West Bengal suggested that this issue could be discussed more thoroughly when the IGST Act was taken up for discussion. Shri Somesh Kumar, Principal Secretary (Finance), Telangana stated that there was large-scale export of pharmaceuticals from his State which involved refund of State VAT of approximately Rs. 350 crore in a year. He stated that the State administration would need the power to examine whether exports had taken place as these medicines could be easily diverted into the local market. He added that as this issue was not discussed, the phrase 'any issue relating to import or export of goods or services' recorded in paragraph 28(x) of the Minutes should be deleted. The Hon'ble Chairperson observed that there should be a formulation under which there should be no encroachment on the powers of the Customs authority or to carry out
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or whether it should be administered only by the Central tax administration. The Hon'ble Minister from West Bengal stated that this issue related to lGST and that refunds on exports would also impact the States and therefore, this issue needed to be examined. The Secretary stated that the objection of the Members related to the expression 'any issue' used in paragraph 28(x) of the Minutes and suggested that this could be replaced by the expression 'such issues of export and import as may be discussed in the Law Committee of officers and brought back to the Council for decision.' The Council agreed to this suggestion.
4.20. The Secretary clarified that the third entry in paragraph 28(x) of the Minutes was discussed in the last Meeting of the Council and it was agreed that where one of the two States which was a party to a dispute regarding the nature of supply (whether inter-State or intra-State) requested the Central administration to adjudicate this dispute, then
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nutes to deem supplies to territorial waters as intra-State supply on the same basis as the supplies to SEZs had been deemed as inter-State supplies The Hon'ble Chairperson observed that the Law Committee and the Union Ministry of Law should be given the flexibility to suitably draft a text to give effect to the decision recorded in paragraph 28(xi) of the Minutes. The Council agreed to this suggestion.
4.22. The Hon'ble Minister from West Bengal stated that no State officers were involved in the process of drafting the Minutes of the Meetings of the Council and suggested to constitute a Minutes drafting committee in which some State officers should also be inducted. The Hon'ble Chairperson observed that the Minutes were not adopted without discussion. The Hon'ble Minister from West Bengal stated that keeping State officials in the Minutes drafting committee would give more comfort to the States and would avoid lengthy discussion on the Minutes as it happened thi
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State if it wishes to be allocated 100% taxpayers below the turnover of Rs. 1.5 crore subject to the overall share/proportion of dealers allocated to a State.'
5.2. To delete the word 'vertical' in paragraph 28(i) of the Minutes.
5.3 To add the word 'all' before the expression 'administrative control' in paragraphs 28(ii) and 28(iii) of the Minutes.
5.4. To delete the decision recorded in paragraph 28(iv) of the Minutes, which reads as follows: “Those States wanting a different basis of division could do so in consultation with the Centre.”
5.5. To replace the decision recorded in paragraph 28(vi) of the Minutes with the following: 'The new registrants shall be initially divided one each between the Central and the State tax administration and at the end of the year, once the turnover of such new registrants was ascertained, those units with turnover below Rs. 1.5 crore shall be divided in the ratio of 90% for the State tax administration and 10% for
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of the GST Council and as vetted by the Union Ministry of Law
6. Introducing this agenda item, the Secretary stated that the draft Compensation Law that was shared with the States as the agenda note to agenda item 2 had been vetted by both the Department of Legal Affairs and the Legislative Department of the Union Law Ministry. He informed that he had taken a meeting of the Central and State Government officials in Udaipur on 17 February 2017 during which the legally vetted draft Compensation Law was discussed. He stated that during this meeting, certain suggestions were made by the State Government officials and based on this, some changes were made to the draft Compensation Law circulated earlier to the States and that this revised text was placed before the Members for consideration. He stated that the changes shown in red colour in the draft text were those suggested by the Law Ministry and those shown in blue colour were based on the suggestions of the State officials.
6.1. Th
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and Services Act”): A new definition was added which reads as follows –
(r) “Union Territories Goods and Services Tax Act” means the Union Territories Goods and Services Tax Act, 2017;
vi, Section 5(1), Proviso (b) (Base Year Revenue): The expression “any taxes” was replaced with the word “tax”.
vii. Section 7(1) (Calculation and Release of Compensation): A new sub-section (1) was added which reads as follows-
(1) Compensation shall be payable to any State for the transition period.
viii. Section 7(3)(a) [earlier Section 7(2)(a)] (Calculation and Release of Compensation): The Section number mentioned in the sub-section was corrected from Section 0 to Section 6.
ix. Section 7(3)(b) (Calculation and Release of Compensation): The indicated in italics was added in Section 7(3)(b)-
(b) the actual revenue collected by a State in any financial year during the transition period would be the actual revenue from State tax collected by the State and net of refunds given by the said
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axes on account of the taxes levied by the respective State under the Acts specified in sub-section (4) of section 5, net of refunds of such taxes;
xi. Explanation to Section 7 (Calculation and Release of Compensation): In view of correction made at (ix) above, the following explanation at the end of Section 7 was deleted: “Explanation.- For the purposes of this section, the actual revenue collected would include the collection on account of State tax, net of refunds of such tax given by the State under Chapter XI of the concerned State Goods and Services Tax Act, and any collection of taxes on account of the taxes levied by the respective State under the Acts specified in sub-section (4) of section 5, net of refunds of such taxes.”
xii. Section 100) (Crediting proceeds of cess to Fund): The portion indicated in italics was added in Section 10(1)-
(1) The proceeds of the cess leviable under section 8 and such other revenues as may be recommended by the Council shall be credited t
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of this Act.
xv. Section 14 (Power to remove difficulties): The portion indicated in italics was added in Section 14(1)-
(1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, on the recommendations of the Council, by order published in the Official Gazette, make such provisions, not inconsistent with the provisions of this Act, as appear to it to be necessary or expedient for removing the difficulty:
6.2. The Hon'ble Chairperson explained that under Section 12 of the Draft Compensation Law, the Rules to implement this law would be made by the Central Government on the recommendation of the Council but, in order to exercise Parliamentary control over subordinate legislation, such Rules would have to be placed before the Parliament and that the Members of Parliament could seek modification of the Rules within a period of 30 working days from the date on which the Rules were tabled in the Parliament. The Hon'ble Minister fro
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e Secretary stated that Section 8(1) of the draft Compensation Law provided that cess could be collected for a period of five years or such period as may be prescribed on the recommendation of the Council. He stated that this implied that the Central Government could raise resources by other means for compensation and this could be then recouped by continuation of cess beyond five years. He stated that the other decisions including the possibility of market borrowing for payment of compensation was part of the Minutes of the 3rd Meeting of the Council (held on 3rd and 4th January, 2017) and need not be incorporated in the Law. The Council agreed to this suggestion.
6.4. The Hon'ble Deputy Chief Minister of Delhi enquired as to why there were two definitions of “State” in Section 2(1) of the draft Compensation Law. He further observed that the definition of “State” was not incorporated in the Central Goods and Services Tax (CGST) Act. The Secretary clarified that the first definiti
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#39;such other revenues', and if borrowing was not defined as 'revenue', it would be more appropriate to use the word 'receipt' instead of the word 'revenue'. CCT, Karnataka stated that another alternative could be to use the word 'amount' instead of the word 'revenue'. The Secretary suggested to use the expression 'such other amounts' or 'such other proceeds' instead of the expression 'such other revenues'. Dr. G. Narayana Raju, Secretary Legislative Department, Union of India pointed out that in Article 266 of the Constitution ofIndia, the term 'revenues' as also 'loans' was used. CCT, Karnataka stated that this supported their point of view as even the Constitution made a distinction between the expressions 'revenues' and 'loans'. The Hon'ble Minister from Kamataka suggested that the Law Committee of officers could look into it. After discussion, the Council agreed to replace the
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39;ble Minister from Kerala observed that collection of cess on GST contradicted the principle of GST. He observed that as per the deliberations, after five years of implementation of GST, cess was to be integrated with the GST rate structure and that cess was to be levied only for compensation purpose. He raised a question whether this understanding should be reflected in the Compensation Law. The Secretary stated that the Compensation Law had broadly two elements: firstly, it created a Compensation Fund which was defined to consist of amount collected as cess or such other amount as might be recommended by the Council; and secondly, it empowered the Central Government to levy cess and Section 8(1) provided that cess could also be levied for a period beyond five years. Shri K. Gnanasekaran, Additional Commissioner, Commercial Taxes, Tamil Nadu stated that Section 10(3) of the draft Compensation Law provided that fifty per cent of the amount remaining unutilised in the Compensation Fun
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at suitable change had already been done by incorporating a new Section 7(1) in the revised draft Compensation Law circulated to the Members just before the start of the Council meeting.
6.8. The Hon'ble Minister from Karnataka stated that in the 8th Meeting of the Council (held on 3 and 4 January, 2017), the Council had decided to examine whether cess should be levied at single point, instead of the presently proposed multi-stage levy and that this aspect was missing in the Compensation Law. He pointed out that aerated beverages and cigarettes on which cess was likely to be levied passed through several retail agents before being finally sold from small retail kiosks and a multi-stage levy would mean that all suppliers in the retail chain would need to comply with the provisions of the Cess Act in addition to the CGST and SGST Acts. He stated that if a single point cess was levied on these two products, it would promote ease of collection and compliance and would curb revenue lea
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specific as well as ad valorem rate.
6.9. CCT, Karnataka stated that aerated drinks and cigarettes were mostly sold on the basis of Maximum Retail Price and therefore loss of revenue was not likely. He further added that a single point cess would help in delinking cess from the return filed by all taxpayers under . GST where 90% of the taxpayers would need to file a nil entry for cess. Shri Udai Singh Kumawat, Joint Secretary, Department of Revenue stated that the computer software could take care of this aspect. The Hon'ble Minister from Karnataka stated that only for two commodities, namely cigarettes and aerated drinks, the small kirana shop owner would need to maintain a ledger for cess. He suggested that the Law Committee should examine this issue thoroughly as this would ease compliance. The Secretary stated that GST was in the nature of a value added tax, and a single point taxation should be avoided. CCT, Kamataka pointed out that cess was to be levied not on the amount of
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evenues' in Section 10(1) of the Compensation Law by the words 'such other amounts'.
7.1. The Hon'ble Chairperson thanked the Council for approving the draft Compensation Law and stated that after the approval of the Union Cabinet, it would be introduced in the Parliament in the session starting from 9 March, 2017.
Agenda Item 3: Approval of the legal provisions in the Model GST Law as per suggestions of the GST Council and vetted by the Union Ministry of Law
8. Introducing this agenda item, the Secretary stated that the entire legally vetted Model GST Law could not be presented before the Council in this meeting because the Union Law Ministry could not take up its vetting before 1 February 2017 due to its preoccupation with the preparations for the Union Budget. He added that the vetted draft had many changes and the Law Committee of officers felt that they needed more time to understand the changes made by the Legislative Department of the Union Law Ministry and wo
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ose suggested by the Law Committee of officers .and the texts in green font were those which were to be incorporated in the SGST Law only. Thereafter, the issues contained in agenda note for agenda item 3 were discussed individually and the important points discussed in respect of these issues are recorded as below-
8.1. Issue No.1 (Provisions relating to Tribunal – Section 104 – Section 121): A presentation on the provisions of the Appellate Tribunal for GST as prepared by GST Policy Wing, CBEC was circulated to all States on 17 February 2017. During the Meeting, the Members expressed that they had gone through the presentation and therefore it need not be made in the Council meeting. Thereafter, discussion on the draft legal provisions took place.
8.1.1. The Hon'ble Deputy Chief Minister of Delhi stated that the provisions contained in Section 106(1)(d) of the Model GST Law regarding three years' experience in tax administration for appointment of Technical Member (State) o
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qualify for appointment to the Tribunal so that officers from non-tax cadres like the lAS could also be selected as a Tribunal Member. He observed that the pool of selection for Tribunal Members should be kept as wide as possible so that officers of high integrity and calibre could be selected. He further suggested that going by the present experience of difficulties faced in getting suitable judges for different tax tribunals, it would be desirable that the retirement age for the Presidents of the National and State Benches of the Tribunal was kept as 70 years instead of the presently proposed 68 years. The Council agreed to both these proposals.
8.1.2. The Hon'ble Minister from West Bengal suggested to delete the provision of Section 106(1)(b)(iii) providing for eligibility of an officer of the Indian Legal Service holding a post not less than Additional Secretary for three years to become Member (Judicial) of the Tribunal. He stated that a similar demand could be made by offic
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inted out that the Chief Justices of the Supreme Court and of the relevant High Court would need to be consulted for appointment of the President of the National Bench and the State Benches but the same might not be required for appointment of Judicial Members as appointment to Tribunals was part of the executive function and Article 50 of the Constitution provided for separation of the judiciary from the executive in the public services of the State. On a query from the Hon'ble Chairperson, the Secretary clarified that presently the Judicial Members of the Customs, Excise and the Service Tax Appellate Tribunal (CESTAT) were appointed in consultation with the judiciary. The CCT, Gujarat stated that Judicial Members of the Gujarat VAT Tribunal were appointed in consultation with the Chief Justice of the Gujarat High Court. The Hon'ble Chairperson stated that a Judicial Member had the flavour of judicial representation and therefore, the High Court of the States should be involve
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he Secretary, Legal Affairs stated that the cadre of Indian Legal Service was relatively small and it had advocates with experience of seven years or more and sometimes even District Judges joined as an officer of the Indian Legal Service. He added that officers in the rank of Additional Secretary in the Indian Legal Service were also discharging quasi-judicial functions as Members of several Tribunals and also working as arbitrators. The Hon'ble Minister from West Bengal stated that his State did not have a strong position on this issue. The Hon'ble Chairperson suggested to retain the provision in the draft Model GST Law that the President and the Judicial Members of the National and State Benches would be appointed in consultation with the Chief Justice of the Supreme Court and the High Court, as the case may be, and that the Technical Members would be appointed by the Central and the State Governments. The Council agreed to this suggestion. The Secretary informed that the ex
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embers as 65 years. The Council agreed to this suggestion.
8.1.5. The Hon'ble Minister from West Bengal stated that in Section 106(l)(d), there should also be a provision for appointment of retired officers as a Technical Member (State) of the Tribunal. The Hon'ble Chairperson agreed with the suggestion and observed that retired officers should also be made eligible for appointment as Technical Member (State) as it would give a chance to good, conscientious retired officers to serve as Technical Member (State) in a Tribunal. The Council agreed to this suggestion.
8.1.6. The Additional Chief Secretary, Uttar Pradesh stated that some officers could become Member (Technical) of the Tribunal at the age of 55 years and could then continue up to 65 years, thus denying a chance to more deserving junior officers to become a Member (Technical) of the Tribunal. The Hon'ble Minister from West Bengal suggested to keep a provision that a Member (Technical) shall serve up to the age of
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nted to the Appellate Tribunal and suggested that he should have a minimum of 2 to 3 years of residuary tenure. The Council did not agree to this suggestion.
8.1.8. The Hon'ble Minister from West Bengal stated that proviso to Section 105(4) was problematic as once the GST Council recommended to constitute a certain number of Area Benches, the Central Government should not have the power to alter this number. He therefore suggested to remove the phrase “as it deems fit” in the proviso. The Additional Secretary, Legislative Department stated that this phrase was used in reference to the Council and not in reference to the Central Government. The Hon'ble Chairperson stated that the drafting of this provision should be suitably modified to reflect this understanding. The Council agreed to this suggestion.
8.1.9. The Hon'ble Chairperson suggested that the Council could consider having a provision in the GST Law that a State Bench of Appellate Tribunal could have jurisdiction o
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mall. He suggested that this amount should be reduced to Rs. 50,000. The Council agreed to the suggestion.
8.1.11. The Hon'ble Minister from West Bengal observed that Section 108 (2) had a provision that the senior most Member of the National Bench shall discharge the functions of the President of the National Bench for a temporary period in case the office of the President fell vacant due to reasons like death or resignation of the President and suggested that a similar provision should be provided in respect of the State Tribunals. The Council agreed to this suggestion.
8.1.12. The Hon'ble Minister from West Bengal raised a question that if place of supply issue was only one of the issues in a dispute and there were other issues in the dispute like valuation or eligibility of input tax credit, then how can the taxpayer segregate the dispute and file one appeal before the National Bench for place of supply issue and another appeal to the jurisdictional State Bench for the ot
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No.2 (Reconciliation of Sections 4 & 5 of Model GST Law): CCT, Gujarat stated that in the 7th Meeting of the Council (held on 22-23 December, 2016), at the suggestion of the Hon'ble Minister from West Bengal, the Council had decided to address the contradiction between Section 4(2) and Section 5(2) of the Model GST Law in respect of the authority (State Government or the Commissioner) that would specify the jurisdiction of officers other than of the Commissioner, and that in accordance with this decision, the Law Committee had revised the text of Section 5(2) of the SGST Law and proposed deletion of the erstwhile Section 4(2) of the SGST Law. He explained that by this amendment the Commissioner had been authorised to decide the jurisdiction of the VAT officers of the rank below the Additional Commissioner. The Council agreed to the proposed amendment.
8.3. Issue No.3 (power to waive penalty – Section 87 A): The Secretary to the Council explained that in the 7th Meeting
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sed to waive penalty for certain class of taxpayers, but only on the recommendation of the Council. The Hon'ble Chairperson observed that the revised provision had kept an enabling power for waiver of penalty for a class of people and this could be approved. The Hon'ble Minister from West Bengal and the Hon'ble Deputy Chief Minister of Delhi supported the revised formulation. The Hon'ble Minister from Rajasthan suggested that this provision should also provide for a waiver of interest and fine. CCT, Gujarat stated that under VAT Law, the State Government had the power not to collect penalty or interest under a 'samadhan yojana ', The Secretary observed that inthe GST regime there could be no 'samadhan yojana' without the approval of the Council. CCT, Karnataka observed that the proposed provision was very wide as it provided for waiver of penalty for all types of offences, including for making supplies without issuing invoice. The Secretary observed that
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and emigration and expulsion from India; currency, coinage and legal tender, foreign exchange; trade and commerce with foreign countries, import and export across customs frontiers, inter-State trade and commerce; and maintenance of public order) of Schedule IV could be deleted and be dealt through a notification. He said that keeping this in view, the Law Committee had . suggested a draft formulation making amendments in Section 3(2)(b) of the Model GST Law shown in blue colour in the agenda note. He further explained that in the 5th Meeting of the Council (held on 2-3 December 2016), it was decided to incorporate supplies of works contract (paragraph 5(t) of Schedule-II) and restaurant (paragraph 5(h) of Schedule-II) as composite supply on which all provisions relating to services shall apply. He informed that in view of this decision, a new clause 6 (indicated in blue colour in the agenda note) had been added in Schedule II for the consideration of the Council. He further informed
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ned to them … ” and observed that it therefore followed, that if the context was otherwise, there could be no legal challenge to the definition proposed in Schedule II of the Model GST Law.
8.4.2. The Principal Secretary (Finance), Odisha stated that Section 3(2)(b) provided for notifying activities or transactions undertaken by the Central Government, State Government or any local authority as may be notified by the Central/State Government on the recommendation of the Council and suggested that this Section should also include 'any statutory regulatory or Constitutional authority' to cover the activities of regulators like Securities and Exchange Board of India (SEBI) and Telecom Regulatory Authority of India (TRAI). The Commissioner (GST Policy Wing), CBEC stated that the activities of the statutory regulators could be handled through specific exemptions. The Principal Secretary (Finance), Odisha stated that statutory regulatory authorities and Constitutional authorities
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es) of the Model GST Law. He further stated that these entities should not be kept out of the input tax credit chain and that the Council should be given an option to either tax or exempt statutory regulatory authorities. The Council did not agree to the proposed addition of statutory regulatory authorities or Constitutional authorities in Section 3(2)(b) of the Model GST Law.
8.4.3. The Hon'ble Minister from Karnataka stated that the proposed insertion of clause 6 in Schedule II relating to 'works contract' and 'restaurant', treating them as services would make them ineligible for benefit of the Composition scheme and that this would adversely affect small restaurants and cafes whose annual turnover was below Rs. 50 lakh and who purchased their inputs like masala, etc. mostly from small, unregistered suppliers. The Hon'ble Minister from West Bengal stated that the restaurants should have the benefit of the Composition scheme. The Secretary stated that an excep
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ntly, the Comptroller and Auditor General of India had discussed this issue with the Hon'ble Chairperson and had explained that while CAG had power under its Act [CAG's (Duties, Powers and Conditions of Services) Act, 1971] to call for information, the officers under the GST Law were bound to give the information to ', CAG and where such information was not available with the tax authorities, they must have power under the GST Law to call for such information from the taxpayers. He stated that CAG's advice was to take this enabling power under the GST Law in order to enable GST officers to discharge their obligations vis-a-vis the CAG.
8.5.1. The Hon'ble Deputy Chief Minister of Delhi did not support the proposal and stated that by agreeing to this provision, CAG would be given power over GST officers. The Hon'ble Minister from Bihar stated that CAG derived its power from the Constitution and they should use the same instead of seeking additional power under th
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audit without these powers. He stated that this issue had already been decided in the 6th Meeting of the Council (held on 11 December, 2016) and should not be reopened. The Hon'ble Minister from Kerala stated that having such a provision under GST Law could create problems. The Hon'ble Deputy Chief Minister of Gujarat stated that CAG did not go to taxpayers of any State for auditing. The Additional Chief Secretary, Uttar Pradesh stated that this provision did not give power to the GST officers to get documents from the taxpayers. He observed that this was a very open ended and sweeping provision and could potentially lead to truckloads of documents being called for which would be physically impossible to comply with. The Hon'ble Chairperson observed that it appeared that majority of the States were not in favour of this provision and that the same might have to be dropped. He stated that he would convey the views of the Council to CAG. The Council agreed to this suggestion
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tion to the various sectors of agriculture was to be decided separately and that the proposed definition of 'agriculture' would have denied power to the Council to decide exemptions in the agricultural sector. He recalled that keeping this in view, in the 7th Meeting of the Council (held on 3-4 January 2017), it was decided that Officers of the Law Committee would examine whether or not definition of 'agriculture' and 'agriculturist' was needed in the GST Law. He informed that while working on the revised formulation, the Law Committee took note of the suggestions made in the 7th Meeting of the Council that the definition of 'agriculture' in GST Law should follow the same approach as in the Income Tax Act, which did not define the word 'agriculture' and only defined the phrase “agricultural income” as the Income Tax Act was concerned only with agricultural income and not with agriculture in general. He explained that the salient feature of
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agricultural and allied products were likely to be exempted, anyone dealing with only exempted items, or having a turnover of less than Rs. 20 lakh would not be required to take registration under GST Law. He added that a person cultivating cash crops like cotton, groundnuts, sugarcane etc., which might not be exempted as they attracted VAT in some States, would be covered by the new definition of the 'agriculturist' and would be exempted from taking registration. He stated that in such a case, GST on supply of these crops by a farmer to a buyer registered under the GST Law would be collected from the registered buyer on reverse charge basis. He also informed that the Union Ministry of Law had vetted the new formulation presented in the agenda note.
8.6.1. The Hon 'ble Deputy Chief Minister of Delhi expressed his agreement with the new formulation. The Hon'ble Minister from Punjab stated that earlier he had raised an issue regarding co-operative societies in which ind
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inister from Punjab suggested to use the word 'any person'. The CCT, Gujarat stated that this term would also cover a company. The Hon'ble Minister from Haryana stated that in his State, the size of land was limited due to the Land Ceiling Act and therefore a company would also have a limited land holding for cultivation. He suggested to adopt a formula for considering a slab based turnover of company for registration under GST as done under the Income Tax Act for applying the rate of income tax. The Hon'ble Minister from Punjab stated that the definition of 'agriculturist' should not be limited in such a manner that co-operative societies got left out of its scope. The CCT, Karnataka stated that if a co-operative society was involved in cultivation of an exempt agricultural product, it would not be required to take registration. He added that the revised definition essentially kept cultivators of taxable agricultural commodities such as cash crops like tea, cof
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e would be covered under clause ( c) of Section 7 (proposed definition of 'agriculturist'). He observed that this provision dealt with cultivation of land by servants on wages in cash or kind and wondered whether share-cropping was a contractual or a master-servant relationship. The Hon'ble Chairperson observed that a share-cropper should be covered under clause (a) i.e. cultivation of land by one's own labour. The CCT, Gujarat stated that a share-cropper would take land on lease and would cultivate it on his own account and would thus be covered under the definition of 'agriculturist'. The Hon'ble Minister from West Bengal stated that they would send a definition of share-cropper for vetting by the Union Ministry of Law.
8.6.4. After discussion, the Council approved the proposed definition of 'agriculturist' and the consequential change in the provision relating to registration and agreed to delete the definitions of 'agriculture' and '
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cy Wing), CBEC explained that the Council in its 7th Meeting (held on 22-23 December, 2016) had decided not to extend the benefit of input tax credit on pipelines and telecom towers and the deletion of the proviso to Section 16(1) and the Explanation to Section 16(4) was carried out to give effect to this decision. Shri Rajan Khobragade, CCT, Kerala stated that even after deleting the words 'pipelines' and 'telecom towers' in Section 16, there could still be an interpretation that input tax credit on these two items could be taken. CCT, Gujarat explained that the presently drafted definition of capital goods in the Model GST Law needed re-examination as the present explanation below Section 16(4) of the Model GST Law made any apparatus, equipment or machinery fixed to the earth and used for making' outward supply of goods or services eligible for input tax credit and this could potentially cover pipelines and telecom towers. Shri P. K. Mohanty, Consultant (GST
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f capital goods and that the major issue was the telecom towers.
9.2.1. Commissioner, GST Council stated that it was difficult to define plant and machinery and that in most of the VAT laws of the world, the terms machinery, equipment, and apparatus were used. He explained that the difficulty in giving a chapter wise listing of capital goods eligible for input tax credit would be that the list would become too long. He further stated that in case input tax credit was allowed only for goods falling under certain specified chapters of HSN, then many goods used as plant and machinery but not falling within those specified chapters would become ineligible for input tax credit. He therefore suggested to use generic expression and to list out the items on which input tax credit was not to be given. The Council agreed that the Law Committee of officers should re-examine the definition of 'capital goods'.
9.2.2. The Hon'ble Minister from Kerala raised a further issue that there s
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ong time, it should be retained. The Hon'ble Chairperson suggested to call them 'Advisor' to which the Hon'ble Minister from Kerala responded that this appeared to be even more high sounding expression than Tax Practitioner. The Secretary suggested an alternative expression 'GST Mitra '. The Hon'ble Minister from Kamataka stated that the expression 'GST Practitioner' was [me and the same should be retained. The Council agreed to this suggestion.
9.4. SI. No. 52 (Section 142- Disclosure of information required under section 141): CCT, Gujarat pointed out that amendment proposed was for Section 142(3) but it was wrongly indicated as amendment for Section 142(4). The Council agreed to correct the sub-section number of Section 142.
10. Subject to discussion as above, the changes proposed in Annexure-I of Agenda Note for Agenda Item 3 were approved.
10.1. For agenda item 3, the Council approved the proposed changes to the Model GST Law as recorded belo
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e shall not be allowed to come back to his parent cadre. He shall serve as a Member (Technical) in the Appellate Tribunal for a period of 5 years or up to the age of 65 years, whichever is earlier.
(vi) Section 105(4) to be suitably modified to reflect the understanding that the phrase “as it deems fit” used in this Section is in reference to the Council and not in reference to the Central Government. .
(vii) To have a provision in the GST Law that a State Bench of Appellate Tribunal could have jurisdiction over more than one State.
(viii) Section 116(2) to be amended to reduce the presently proposed monetary limit for not admitting an appeal before the Appellate Tribunal from Rs. 1 lakh to Rs. 50,000.
(ix) To incorporate a provision similar to Section 108 (2) (applicable for the National Tribunal) that the senior most Member of the State Bench shall discharge the functions of the President of the State Bench for a temporary period in case the office of the President fell vacan
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y, by order, specify.
10.1.3. Issue No.3 (power to waive penalty – Section 87A):
To add the following new Section 87 A in the Model GST Law:
Section 87 A: Notwithstanding anything contained in the provisions of section 85 or 86 of this Act, any of the penalty referred to in the said sections may be waived in part or full for such class of the taxpayers, under such mitigating circumstances as may be notified by the Central/State Government in this regard, on the recommendation of the Council.
10.1.4. Issues No.4&' 5 (Issues relating to Supply read with Schedules II and IV -Section 3):
(i) To delete Schedule IV of the Model GST Law and to amend Section 3 of the Model GST Law as follows (as indicated below in underlined portion in italics and strikethrough):
Section 3:
For the purposes of this Act, the expression “supply” includes –
(1) (a) all forms of supply of goods or services or both such as sale, transfer, barter, exchange, license, rental, lease or disposal made o
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(2), the Central Government may, upon the recommendation of the Council, specify, by notification, the transactions that are to be treated as-
(a) a supply of goods and not as a supply of services; or
(b) a supply of services and not as a supply of goods. or
(e) neither a supply of goods nor a supply of services.
(ii) To amend Section 3(2)(b) of the Model GST Law by adding a new Clause 6 in Schedule II (as indicated below in underlined portion in italics) and to delete the existing sub-clauses 5(f) and 5(h) of Schedule II of the Model GST Law:
6. The following composite supplies shall be treated as a supply of services-
(a) works contract including transfer of property in goods (whether as goods or in some other form) involved in the execution of a works contract; and
(b) 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 (other than alcoholic liquor (or human consumption), w
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#39;s own labour, or
(b) by the labour of one 's family, or
(c) by servants on wages payable in cash or kind or by hired labour under one's personal supervision or the personal supervision of any member of one 's family;
Section 23
The following persons shall not be liable to registration. namely: –
(b) an agriculturist. for the purpose of agriculture,to the extent of supply of produce out of cultivation of land.
11. The changes to the various Sections of the Model GST Law proposed in Annexure-I of the Agenda Note relating to Agenda Item 3 was approved by the Council subject to the following observations:
(i) Sl. No. 12, 13 & 14 of Annexure I (Section 9- Composition Levy): In Section 9 of the Model GST Law, the ceiling of turnover for eligibility for Composition scheme shall be provided as Rs. one crore but presently, the Composition scheme would be available only for units upto a turnover of Rs. 50 lakh.
(ii) Issue No. 18 (Section 16- Eligibility and conditions for
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ted that the stakeholders who had been meeting him, had raised certain grey areas like how stock transfer of services would take place; the matters to be treated as supply; and complications in relation to definition of related party. He suggested that in order to address these grey areas, the Law Committee of officers should meet the stakeholders. The Hon'ble Chairperson stated that these suggestions should be given in writing for the Law Committee to consider.
14. The Hon'ble Chairperson observed that the Minutes of all the Council meetings should be made publicly available at an appropriate time so that it could serve as a ready reference to understand the discussion on various issues in the Council.
15. The meeting ended with a vote of thanks to the Chair.
(Arun Jaitley)
Chairperson, GST Council
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Document 1
MINUTE BOOK
Annexure 1
List of Ministers who attended the 10th GST Council Meeting on 18 February 2017
S No
State/Centre
Name of the Minister
Cha
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r
CHAIRMAN'S
INITIALS
Page 32 of 36
WRITE A WAY
MINUTE BOOK
Annexure 2
List of Officers who attended the 10th GST Council Meeting on 18 February 2017
S No
State/Centre
Name of the Officer
Charge
1
Govt of India
Dr. Hasmukh Adhia
Revenue Secretary
2 Ministry of Law
Shri Suresh Chandra
3 Ministry of Law
Dr. G. Narayana Raju
4
Govt of India
Shri Najib Shah
Secretary, Legal Affairs
Secretary, Legislative Department
Chairman, CBEC
5 Govt of India
Ms. Vanaja N. Sarna
Member (P&V), CBEC
6
Govt of India
Shri Ram Tirath
7
Govt of India
Shri Mahender Singh
8
Govt of India
Shri P.K. Jain
9
Govt of India
Shri B.N. Sharma
10 Ministry of Law
Dr. Reeta Vasishta
11
Govt of India
Shri P.K. Mohanty
12
Govt of India
Shri Upender Gupta
13
Govt of India
Shri Udai Singh Kumawat
14
Govt of India
Shri Amitabh Kumar
15 Govt of India
Shri G.D. Lohani
16
Govt of India
Shri D.S.Malik
17
17
Ministry of Law
Dr. R.J.R. Kasibhatla
Member (GST), CBEC
Dir
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Sinha
Charge
Joint Commissioner
26
GST Council
Shri Kaushik TG
27
GST Council
Shri Sandeep Bhutani
28
Andhra Pradesh
Shri J. Syamala Rao
29
Andhra Pradesh
Shri T. Ramesh Babu
30 Arunachal Pradesh
Shri Tapas Dutta
31
Arunachal Pradesh
Shri Nakut Padung
32
Assam
Dr. Ravi Kota
33 Assam
Shri Anurag Goel
34
Bihar
Ms. Sujata Chaturvedi
35
Bihar
Shri Arun Kr. Mishra
36 Chhattisgarh
Shri Amitabh Jain
37 Chhattisgarh
Ms. Sangeetha P
38 Delhi
Shri R.K. Mishra
Assistant Commissioner
Superintendent
Commissioner, Commercial Taxes
Additional Commissioner, Commercial
Taxes
Assistant Commissioner, VAT
Superintendent, VAT
Finance Commissioner
Commissioner, Commercial Taxes
Principal Secretary & Commissioner,
Commercial Taxes
Addl. Secretary, Commercial Taxes
Principal Secretary (Finance)
Commissioner, Commercial Taxes
Special Commissioner
39
Delhi
Shri Anand Kumar Tiwari
Additional Commissioner, GST
40
40
Goa
Shri Dipak Bandekar
41
Gujarat
D
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an Khobragade
Commissioner, Commercial Taxes
53 Madhya Pradesh
Shri Raghwendra Kumar Singh
Commissioner, Commercial Taxes
54 Madhya Pradesh
Shri Sudip Gupta
55 Maharashtra
Shri Rajiv Jalota
Deputy Commissioner
Commissioner, Sales Tax
Joint Commissioner, Sales Tax
Assistant Commissioner, Taxes
Commissioner, Taxes
59
Mizoram
Shri Kailiana Ralte
Deputy Commissioner, Taxes
60
60
Mizoram
Shri R. Zosiamliana
Deputy Commissioner, Taxes
61
Odisha
Shri Tuhin Kanta Pandey
Principal Secretary (Finance)
62
62
Odisha
Shri Saswat Mishra
63
33
Odisha
Shri Sahadev Sahu
64 Puducherry
Shri G. Srinivas
65 Punjab
Shri Rajeev Gupta
66 Punjab
Shri Pawan Garg
67 Rajasthan
Shri Prem Singh Mehra
68 Rajasthan
Shri Praveen Gupta
69 Rajasthan
Shri Alok Gupta
70
Sikkim
Shri Manoj Rai
71 Tamil Nadu
Shri K. Gnanasekaran
Shri D. Soundarajpandian
Shri Somesh Kumar
72 Tamil Nadu
73 Telangana
74 Telangana
Shri Anil Kumar
75 Telangana
Shri Laxminarayan Jannu
76
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